[Federal Register Volume 79, Number 77 (Tuesday, April 22, 2014)]
[Rules and Regulations]
[Pages 22421-22449]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09135]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 648 and 697
[Docket No. 140106011-4338-02]
RIN 0648-BD88
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast
Groundfish Fishery; Framework Adjustment 51
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS has partially approved Framework Adjustment 51 to the
Northeast Multispecies Fishery Management Plan (Groundfish FMP), and
this final rule implements the approved measures. This action sets
catch limits for groundfish stocks, revises the rebuilding programs for
Gulf of Maine cod and American plaice, modifies management measures for
yellowtail flounder, and revises management measures for the U.S./
[[Page 22422]]
Canada Management Area. Although not part of Framework 51, this action
also sets fishing year 2014 trip limits for the common pool fishery and
announces 2014 accountability measures for windowpane flounder. This
action is necessary to respond to updated scientific information and
achieve the goals and objectives of the Groundfish FMP. The approved
measures are intended to help prevent overfishing, rebuild overfished
stocks, achieve optimum yield, and ensure that management measures are
based on the best scientific information available.
DATES: This final rule is effective on May 1, 2014.
FOR FURTHER INFORMATION CONTACT: Sarah Heil, Fishery Policy Analyst,
phone: 978-281-9257.
SUPPLEMENTARY INFORMATION:
Background
The Groundfish FMP specifies management measures for 16 groundfish
species in Federal waters off the New England and Mid-Atlantic coasts.
Based on fish size, and the type of gear used to catch the fish, some
of these species are managed as ``small-mesh species,'' and others are
managed as ``large-mesh species.'' Small-mesh species include silver
hake (whiting), red hake, offshore hake, and ocean pout. Of these
species, silver hake (whiting), red hake, and offshore hake are managed
under a separate small-mesh multispecies program. Large-mesh species
include Atlantic cod, haddock, yellowtail flounder, American plaice,
witch flounder, winter flounder, Acadian redfish, white hake, pollock,
windowpane flounder, ocean pout, Atlantic halibut, and Atlantic
wolffish. These large-mesh species are divided into 19 stocks based on
their geographic distribution, and, along with ocean pout, are managed
under the groundfish program.
The New England Fishery Management Council (Council) is required to
set annual catch limits for each groundfish stock, along with
accountability measures that help ensure the catch limits are not
exceeded and, if they are, that help mitigate the overage. The Council
develops annual or biennial management actions to set catch limits
based on the best scientific information available and adjust
management measures for the groundfish fishery that will help prevent
overfishing, rebuild overfished stocks, and achieve optimum yield. For
most groundfish stocks, the Council typically adopts catch limits for 3
years at a time. Although it is expected that the Council will adopt
new catch limits every 2 years, specifying catch levels for a third
year ensures there are default catch limits in place in the event that
a management action is delayed. The Council sets catch limits annually
for the three transboundary Georges Bank (GB) stocks that are jointly
managed with Canada (GB yellowtail flounder, eastern GB cod, and
eastern GB haddock), as described in more detail later in this
preamble.
Last year, the Council adopted, and we partially approved,
Framework 50, which set fishing year (FY) 2013-2015 catch limits for
all groundfish stocks, except for white hake and the U.S./Canada
stocks. The Council has now developed and adopted Framework 51 in order
to respond to new stock assessment information for white hake and the
shared U.S./Canada stocks. Based on updated information for other
groundfish stocks, the Council has also adopted revised rebuilding
programs for Gulf of Maine (GOM) cod and American plaice, as well as
other changes to groundfish management measures that better meet the
goals and objectives of the Groundfish FMP.
Disapproved Measures
1. Gulf of Maine Cod and American Plaice Rebuilding Plan Review
Analysis
Framework 51 proposed to establish a rebuilding plan review
analysis for GOM cod and plaice in conjunction with the revised
rebuilding programs adopted in this final rule. The rebuilding plan
review analysis will be triggered if the stock falls below its
rebuilding trajectory, among other criteria, and is intended to
investigate why rebuilding did not occur as expected. We are partially
disapproving the proposed rebuilding plan review analysis to remove
irrelevant portions of the measure and the regulatory provisions
related to these parts of the review analysis.
Portions of the proposed rebuilding plan review were intended to
consider extending the rebuilding programs for GOM cod and plaice to
the maximum 10 years allowed under the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). Although these
portions of the proposed measure were initially included because the
Council was considering shorter rebuilding timelines for both stocks,
the Council ultimately adopted, and we have approved, 10-year
rebuilding programs for GOM cod and plaice. As a result, we noted in
the proposed rule for this action that the portions of the proposed
measure related to consideration of extending the rebuilding program to
10 years appeared to be irrelevant and redundant, and requested
specific comments on these portions of the rebuilding plan review
analysis. We received no public comments that specifically addressed
our concerns, or demonstrated why these portions of the rebuilding plan
review analysis for GOM cod and plaice were still necessary. In the
absence of any justification for keeping these portions of the review
analysis, we have determined that the provisions related to extending
the rebuilding program to 10 years are not applicable or meaningful to
this action and, as a result, is not consistent with National Standard
7 of the Magnuson-Stevens Act. Based on this determination, we have
disapproved these portions of the rebuilding plan review analysis.
2. Revised Discard Estimation for Georges Bank Yellowtail Flounder
Framework 51 proposed to change the stratification of GB yellowtail
flounder discards for sectors and calculate discards for two different
areas: (1) Statistical area 522; and (2) statistical areas 525, 561,
and 562 combined. Under the existing stratification (a single stratum
for statistical areas 522, 525, 561, and 562), the Council was
concerned that even if some sector vessels fished in areas on GB where
little yellowtail flounder is caught, in order to reduce catch of GB
yellowtail flounder, other vessels fishing on other parts of GB, with
higher catch rates of yellowtail flounder, would impact the discard
rate for the entire sector. As a result, creating separate strata for
statistical area 522 and statistical areas 525, 561, and 562 combined
was intended to more accurately reflect yellowtail flounder discards
and fishing activity in these areas. When the Council took final action
on Framework 51, and adopted the proposed measure, it also passed a
motion that the measure be implemented ``unless NMFS develops a discard
tool to address this issue through the sectors.'' This discard tool is
explained in more detail further below.
We have disapproved the proposed revisions to the GB yellowtail
flounder discard strata because it would unnecessarily increase the
cost and burden of monitoring sector catches, and potentially increase
uncertainty of catch estimates, without any measurable benefits for
sectors. During the development of Framework 51, we noted concerns for
the approvability of this measure because it was unchanged from the
same measure that we disapproved last year in Framework 48, and no
additional rationale or analysis was provided to sufficiently overcome
[[Page 22423]]
our previous determination that the measure was not consistent with
National Standards 5 and 7 of the Magnuson-Stevens Act. We noted these
same concerns in the proposed rule for this action, and requested
specific comment on this issue. Based on a review of the proposed
measure and public comments received, we determined that the added
complications of administering this measure would increase costs more
than it provides benefits to the fishing industry or improved catch
estimates, and we explain each of these issues below. For these
reasons, we determined that this measure is not consistent with
National Standards 5 or 7 of the Magnuson-Stevens Act.
First, the revised discard strata may not improve the precision, or
reduce the variances, of catch estimates for sectors. Creating an
additional stratum for GB yellowtail flounder would reduce the number
of observed trips contributing to the discard rate calculation for each
stratum (area 522 and areas 525/561/562 combined), which could increase
the variance in the catch estimates. This was demonstrated in the
Council's analysis of this measure that showed the creation of two
different areas for discard calculations reduced the number of observed
trips to low levels for several sectors. Due to the smaller sample
size, finer-scale stratification would also likely result in discard
rate estimates, and thus catch estimates, that are more sensitive to
outliers in the data. In addition, the revised discard strata could
increase uncertainty of catch estimates if it increases errors in the
statistical area reported for vessel landings. As the Council's
analysis of the revised discard strata also indicates, if the measure
resulted in increased variance of discard estimates, this could
subsequently increase monitoring coverage levels necessary to
accurately monitor sector catches. Lower observer coverage and this
finer-scale stratification could also result in very high or low
discard rates just from chance alone. Thus, without appropriate
monitoring coverage, increased variability in discard estimates would
affect our ability to reliably monitor sector catches, achieve the 30-
percent coefficient of variation for each stock required by the
Groundfish FMP, and ensure that overfishing is not occurring.
The Council's analysis of the revised discard strata also showed
that it would not likely lead to large changes in the total discard
estimates of GB yellowtail flounder, which appears to diminish any
utility and benefit of the revised discard strata. While the finer-
scale stratification could allow discard rates to more closely reflect
actual discards of yellowtail flounder in different parts of Georges
Bank, this measure would not have any real benefits for sectors that
could not be achieved within the existing discard rate strata.
Particularly given the reduction in the GB yellowtail flounder catch
limit, sectors could already take advantage of the spatially different
catch rates within the GB yellowtail flounder stock area by choosing to
fish only in those areas with known low catch rates of GB yellowtail
flounder. A separate discard rate for statistical area 522 could
benefit an individual vessel with a lower GB yellowtail flounder
discard rate, but that vessel would still be influenced by other
vessels in its sector that choose to fish in other areas of Georges
Bank with higher discards. A sector is limited by the total catch of GB
yellowtail flounder by all of its member vessels, and finer-scale
stratification does not eliminate the need for a sector to manage catch
of GB yellowtail flounder by all of its vessels to prevent an early end
to their fishing season. Based on the Framework 51 analysis, a separate
discard rate in statistical area 522 could benefit some sectors;
however, other sectors may be negatively affected by the proposed
measure because it could increase their discard estimates.
In the proposed rule for this action, we requested specific comment
to address our concerns for the revised discard strata. We only
received one comment on this measure, and that comment did not address
our concerns relative to National Standards 5 and 7 of the Magnuson-
Stevens Act. As a result, no additional rationale has been provided to
sufficiently respond to our concerns about this measure, or show that
the increased administrative burden would be meaningfully offset by
measurable benefits for sectors. Thus, due to all of our concerns that
this measure could increase the uncertainty of catch estimates and the
costs of monitoring and administration of sectors without any
corresponding benefits to sectors, we have determined that it is not
consistent with National Standards 5 and 7, and have disapproved this
measure.
When adopting Framework 51, the Council expressed that it preferred
a sector discard tool be developed instead of the revised discard
strata proposed in Framework 51. We evaluated the approvability of the
revised discard strata on its own merits, and concluded that the
revised discard strata is not consistent with applicable law, as
already stated above. However, we also considered the Council's
preference for a discard tool to be provided to sectors that could
serve as an alternative approach to address concerns for sector discard
calculations. This tool does not require any regulatory changes and,
unlike the proposed revision to the GB yellowtail flounder discard
strata, it does not change the discard estimates for each sector.
Rather, the discard tool is intended to help sectors allocate estimated
discards among member vessels. Shortly after the Council took final
action on Framework 51, we developed a discard tool for sectors, and
presented this tool at a sector workshop in February 2014. The Council
has not had the opportunity to comment on the discard tool we developed
due to timing of meetings; however, we provide a brief summary below of
potential uses for the new discard tool, and our efforts to work with
the sectors to improve its utility.
There are multiple uses of this tool that could allow a sector to
assign discards in any number of ways, and each sector can potentially
customize the discard tool based on the sector's business model. For
example, the tool could be used to assign discards for a particular
stock, for inshore and offshore vessels, for vessels using slightly
different gear configurations, to exclude certain vessels or groups of
vessels from the discard calculation, or assign discards on a number of
other criteria including vessels size, target species, or season
fished. Due to this wide range of possible uses, the discard tool
potentially addresses concerns for sector discard estimates more than
any revisions to the discard strata for a single stock, as proposed in
Framework 51. We received initial feedback and public comments from
sectors that the tool will likely be useful for sectors, though it
could be difficult for sector representatives to learn how to properly
use the tool. We realize that sector managers will likely need, and
benefit from, additional training before the discard tool can be more
widely used. Since the proposed rule to this action, we solicited
additional feedback from sectors on the potential utility of this tool.
We will continue to work with sector representatives to explain the
various ways the tool can be used, and help sectors decide how the tool
could best serve their needs.
Approved Measures
We have approved the following Framework 51 measures, and have
determined that these measures are consistent with the goals and
objectives of the Groundfish FMP, as well as the requirements of the
Magnuson-Stevens Act:
[[Page 22424]]
1. Ten-year rebuilding programs for GOM cod and American plaice;
2. FY 2014 catch limits for the three shared U.S./Canada stocks;
3. FY 2014-2016 catch limits for white hake;
4. Accountability measures for GB yellowtail flounder for the
small-mesh fisheries;
5. A 1-year U.S./Canada quota trading mechanism (for FY 2014 only);
6. A revision to the administration of eastern and western GB
haddock sector allocations; and
7. Prohibition on possession of yellowtail flounder by limited
access scallop vessels.
This rule also implements a number of other measures that are not
part of Framework 51, but that were considered under NMFS Regional
Administrator authority provided by the Groundfish FMP. We are
including these additional measures in this rule in conjunction with
the Framework 51 approved measures for expediency purposes. The
additional measures implemented in this rule are listed below, and each
is described in more detail later in this preamble.
FY 2014 management measures for the common pool fishery--
This action implements initial FY 2014 trip limits for the common pool
fishery. The Regional Administrator has the authority to set management
measures for the common pool fishery that will help ensure the fishery
catches, but does not exceed, its catch limits. The trip limits
included in this action reflect public comments we received on the
proposed trip limits.
FY 2014 accountability measures for windowpane flounder--
We are announcing accountability measures for northern and southern
windowpane flounder that have been triggered due to overages of the
overall catch limits for both stocks. We also announced these
accountability measures at the Council's Groundfish Oversight Committee
meeting on November 19, 2013, and in our January 17, 2014, letter to
the Council.
Other regulatory corrections--We are implementing several
corrections to the regulations to correct references, replace
inadvertent deletions, and make other minor edits. Each correction is
described in more detail in Item 10 of this preamble.
1. Gulf of Maine Cod and American Plaice Rebuilding Programs
Revised Rebuilding Strategies
This rule implements 10-year rebuilding plans for GOM cod and
plaice that will rebuild the stocks by 2024 with a median probability
of success. The previous rebuilding programs for GOM cod and plaice
were scheduled to rebuild the stocks by 2014 and 2017, respectively. In
2012, updated scientific information indicated that neither stock could
rebuild by its rebuilding end date, even in the absence of all fishing.
As a result, we notified the Council that the stocks were not making
adequate rebuilding progress, and that the Council was required to
revise the rebuilding programs for both stocks within 2 years, or by
May 1, 2014, consistent with the Magnuson-Stevens Act. The revised
rebuilding strategies implemented in this action are in response to
this mandate.
The Magnuson-Stevens Act requires that overfished stocks be rebuilt
as quickly as possible, not to exceed 10 years, while accounting for
the needs of fishing communities. The minimum rebuilding time
(Tmin) is the amount of time a stock is expected to take to
rebuild to its maximum sustainable yield biomass level
(SSBMSY) in the absence of any fishing mortality.
Tmin for a stock is typically used for informational
purposes when developing rebuilding programs, and it is important to
note that Tmin does not necessarily account for the needs of
fishing communities, or scientific uncertainties in rebuilding
projections. For GOM cod, Tmin is 6 years, or 2020, and
Tmin for plaice is 4 years, or 2018. The rebuilding programs
adopted in this action will use the maximum time period allowed by the
Magnuson-Stevens Act, and as explained in more detail below, these
programs intend to address the needs of fishing communities as much as
practicable, as well as factor in past performance of groundfish catch
projections in order to further increase the likelihood of rebuilding
success.
Long-term catch projections for groundfish stocks tend to
underestimate fishing mortality and overestimate stock biomass (see
Appendix 5 to the 2012 groundfish assessment updates for more
information: http://nefsc.noaa.gov/publications/crd/crd1206/). The
inherent uncertainty surrounding long-term projections makes it
difficult to estimate the fishing mortality rate that is required to
rebuild the stock within the specified time frame, or
Frebuild. This uncertainty is due, in part, to the
estimate's dependence on future stock recruitment (the amount of fish
added to the stock each year), which is often difficult to predict. If
stock recruitment does not occur as projected, then progress towards
rebuilding can occur much slower than expected.
The Council's default control rule for setting catch limits
requires that catches be set based on 75% FMSY (i.e., the
fishing mortality rate that, if applied over the long term, would
result in maximum sustainable yield) or Frebuild, whichever
is lower. Typically, when a stock is in a rebuilding program,
Frebuild is less than 75% FMSY, and, thus, the
annual catch limits are usually set based on Frebuild.
However, catch limits based on Frebuild tend to be
unreliable since Frebuild in the near term is dependent on
recruitment assumptions from the long-term catch projections. As a
result, rebuilding progress for many groundfish stocks has often
occurred slower than expected due to the uncertainties in long-term
catch projections, which leads to dramatic reductions in catch limits
as the rebuilding end date gets closer. As Frebuild
approaches zero, it is less likely to be used for setting catch limits
because of the resultant dramatic reductions in fishing mortality
necessary to meet Frebuild, which can undermine rebuilding
objectives.
To help avoid this problem, all of the rebuilding strategies
considered in Framework 51 for GOM cod and plaice were calculated using
an Frebuild that was greater than 75% FMSY. But
during the rebuilding time period, catches will continue to be set
consistent with the Council's default control rule (75% FMSY
or Frebuild, whichever is lower). Thus, under this approach,
catches will be set more conservatively than Frebuild (based
on 75% FMSY), at least initially in the revised rebuilding
programs. Setting catches more conservatively than Frebuild
is intended to account for uncertainties in the long-term catch
projections that result from assumptions of recruitment that may be
overly optimistic. This strategy is intended to accelerate the
rebuilding timeline and increase the likelihood of success compared to
traditional groundfish rebuilding programs that did not attempt to
proactively address these uncertainties. In the future, if information
shows that GOM cod and plaice stock sizes have not increased as
projected, it is possible that Frebuild could become less
than 75% FMSY. Under this scenario, catches would then be
set based on the lower rate, or Frebuild, consistent with
the Council's default control rule.
The 10-year rebuilding strategy for GOM cod also addresses the
differences in the two stock assessment models, which make it difficult
to project how quickly the stock can rebuild. The most recent stock
assessment for GOM cod, completed in December 2012, approved two
different assessment models, and both assessment models were approved
[[Page 22425]]
as the basis of providing catch advice. One assessment model (base case
model) assumes the natural mortality rate (M) is 0.2. The second
assessment model (Mramp model) assumes that M has increased
from 0.2 to 0.4 in recent years. The assessment concluded that M would
return to 0.2 at some point, though, in the short-term, M would remain
0.4. As a result, fishing mortality targets used in the catch
projections from both models are based on biological reference points
that assume M=0.2. A detailed summary of the benchmark assessment is
available from the NMFS Northeast Fisheries Science Center at: http://www.nefsc.noaa.gov/saw/saw55/crd1301.pdf.
Interpreting and developing a rebuilding program under the
Mramp model is difficult because it is not known when M
would return to 0.2. However, a change in M (from 0.4 to 0.2) is
required to rebuild the GOM cod stock, and if this reduction does not
occur, then GOM cod may be unable to rebuild based on the revised
rebuilding strategy. For this reason, the 10-year rebuilding program
adopted in this action is expected to better incorporate the
differences in the two assessment models compared to a shorter
rebuilding time period.
The rebuilding strategies implemented in this action will use the
full 10 years, as allowed by the Magnuson-Stevens Act, even though
rebuilding might be able to occur sooner. These strategies are intended
to address the uncertainties noted above, as well as to account for the
needs of fishing communities. As noted above, the approach used for
developing the rebuilding strategies is intended to accelerate the
rebuilding timeline because catches will be set more conservatively
than Frebuild, at least initially. This approach increases
the likelihood of success for rebuilding GOM cod and plaice, and in the
long-term, provides greater net benefits that would occur from rebuilt
stocks. The 10-year rebuilding programs for GOM cod and plaice will
also provide more flexibility and better address the needs of fishing
communities compared to rebuilding programs that target an earlier end
date. This is particularly important for GOM cod, which is a key
groundfish stock, because constrained catch limits for GOM cod also
impede the harvest of other groundfish stocks in the GOM. In addition,
plaice is a ``unit stock,'' meaning that there are not multiple stocks
within the management unit. As a result, severely constrained catch
limits for plaice could result in lost groundfish fishing opportunities
across the entire groundfish management area (GB, GOM, and Southern New
England). Analysis completed for various rebuilding scenarios indicates
that the 10-year rebuilding programs adopted in this action will
maximize the net present values (i.e., potential landings streams and
future revenues) compared to other rebuilding scenarios that would have
targeted earlier end dates (see Section 7.4 of the Framework 51
Environmental Assessment). Thus, the rebuilding strategies take into
account, and address, the needs of fishing communities, while
rebuilding the stocks as quickly as possible, and will ultimately
increase the likelihood of achieving optimum yield in the fishery.
These rebuilding strategies are also approved in conjunction with a new
process, described below, that will monitor progress throughout the
rebuilding time period, and allow for necessary adjustments to be made
if either GOM cod or plaice falls below its rebuilding trajectory.
Rebuilding Plan Review Analysis
In conjunction with implementing the revised rebuilding programs,
this rule also establishes a rebuilding plan review analysis for both
GOM cod and plaice. We only partially approved this measure because
part of the rebuilding plan review was intended to consider extending
the rebuilding programs for both stocks to the maximum 10 years allowed
under the Magnuson-Stevens Act. We disapproved these portions of the
rebuilding plan review analysis, as we described in more detail in the
Disapproved Measures section of this preamble. We have approved all
other portions of the rebuilding plan review analysis.
The Council will initiate the rebuilding plan review for the
respective stock if all three of the following conditions are met:
The total catch limit has not been exceeded during the
rebuilding program;
New scientific information indicates that the stock is
below its rebuilding trajectory (i.e., rebuilding has not progressed as
expected); and
Frebuild becomes less than 75% FMSY.
If all three of the criteria described above are met, then the
Council would task its appropriate body (e.g., Groundfish Plan
Development Team or Scientific and Statistical Committee (SSC) to
complete a rebuilding plan review that would provide the Council with
new catch advice for GOM cod and/or plaice. In priority order, the
rebuilding plan review would:
1. Review the biomass reference points; and
2. Provide catch limits based on Frebuild for these
scenarios:
a. Under a review of the biomass reference points (Item 1 above);
and
b. Under the existing rebuilding program.
This rebuilding plan review analysis is intended to investigate why
rebuilding has not occurred as expected. These types of analyses are
typically already done as part of the current biennial review process
for the groundfish program, or during a stock assessment, regardless of
whether the above criteria are met for initiating the review. As a
result, we initially noted concerns with the potential administrative
burden of this measure, and whether there were any measurable benefits
of the rebuilding plan review analysis. Based on public comments
received, however, although many of the aspects of this rebuilding
review are explored during stock assessments and the biennial review
process, we determined that this measure will be useful because it
commits the Council to a thorough evaluation of rebuilding progress,
should a stock drop below its rebuilding trajectory. This measure
guarantees that a rebuilding plan review would be completed compared to
the current process that complete these tasks on a more ``ad-hoc''
basis. In addition, the rebuilding plan review analysis is expected to
provide the Council with the necessary information to adjust management
measures and ensure that the stocks still rebuild by the rebuilding end
date. The rebuilding review analysis adopted in this action only
applies to GOM cod and plaice; however, it is expected that, if this
type of review is successful, it could be adopted for other rebuilding
stocks in the future.
Although we partially approved the rebuilding plan review, we
highlight a number of issues here to clarify the utility of this
information and how the results of any rebuilding plan review analysis
could be used to inform decision-making in the future. First, the only
basis for initiating the rebuilding plan review analysis would be if a
stock assessment provided information to show that a stock was not on
its rebuilding trajectory. As noted above, if a stock falls below its
rebuilding trajectory, at least an initial investigation of why
rebuilding has not occurred as expected would likely occur during the
stock assessment (e.g., a comparison of recruitment assumptions and
realized recruitment). Further, we expect that, as part of the existing
biennial review process, the Groundfish Plan Development Team should
already be reviewing and evaluating fishing year
[[Page 22426]]
catches compared to the respective annual catch limits each year in
order to recommend and develop appropriate management measures to
achieve the goals and objectives of the Groundfish FMP. We also
reiterate that there is no guarantee the review of the biomass
reference points (Item 1) will result in any revisions to the biomass
reference points. The only analyses that would be sufficient to revise
biomass reference points, and thus provide new catch advice options
based on those revised biological reference points (Item 2a), would be
another stock assessment.
As noted in a comment received on the proposed measure, this
rebuilding plan review analysis could be adopted for other rebuilding
stocks in the future, should this process prove successful for GOM cod
and plaice. Although we disapproved portions of the rebuilding plan
review analysis because the rebuilding programs adopted in this action
already use the maximum 10 years allowed, the Council could consider
these disapproved provisions in the future for other stocks in those
cases where the Council initially adopts a shorter rebuilding time
period.
2. U.S./Canada Quotas
This action adopts FY 2014 quotas for the three transboundary GB
stocks that are jointly managed with Canada (eastern GB cod, eastern GB
haddock, and GB yellowtail flounder) based on the recommendations of
the Transboundary Management Guidance Committee (TMGC), which is a
government-industry committee made up of representatives from the
United States and Canada.
Each year, the TMGC recommends a shared quota for each stock based
on the most recent stock information and the TMGC harvest strategy. The
TMGC's harvest strategy for setting catch levels is to maintain a low
to neutral risk (less than 50 percent) of exceeding the fishing
mortality limit for each stock. The TMGC's harvest strategy also
specifies that when stock conditions are poor, fishing mortality should
be further reduced to promote stock rebuilding. The shared quotas are
allocated between the United States and Canada based on a formula that
considers historical catch (10-percent weighting) and the current
resource distribution (90-percent weighting).
Assessments for the three transboundary stocks were completed in
June 2013 by the Transboundary Resources Assessment Committee (TRAC). A
detailed summary of the 2013 TRAC assessment can be found at: http://www.nefsc.noaa.gov/saw/trac/. The TMGC met in September 2013 to
recommend shared quotas for 2014 based on the updated assessments and
the TMGC's harvest strategy, and the Council adopted the TMGC's
recommendations in Framework 51. The 2014 shared U.S./Canada quotas,
and each country's allocation, are listed in Table 1. For a detailed
discussion of the TMGC's 2014 catch advice, see the TMGC's guidance
document at: http://www2.mar.dfo-mpo.gc.ca/science/tmgc/tgd.html.
Although the 2014 shared quota for GB yellowtail flounder is a 20-
percent decrease from 2013, the U.S. quota for GB yellowtail flounder
is increasing by 53 percent in 2014 compared to 2013. This increase is
due to the large increase of the U.S. share of the quota in 2014 (from
43 percent to 82 percent) due to higher distribution of this stock in
U.S. waters compared to past years. The 2014 shared U.S./Canada quotas
for eastern GB cod and haddock are higher compared to 2013. The
resulting U.S. quotas for these stocks are increasing by 60 percent and
166 percent, respectively, compared to 2013. The 2014 catch limit for
GB yellowtail flounder is also discussed in more detail in Item 3 of
this preamble.
The U.S./Canada Resource Sharing Understanding requires that any
overages of the eastern GB cod, eastern GB haddock, or GB yellowtail
flounder U.S. quotas be deducted from the U.S. quota in the following
fishing year. If any fishery that is allocated a portion of the U.S.
quota exceeds its allocation, and causes an overage of the overall U.S.
quota, the overage reduction would be applied to that fishery's
allocation in the following fishing year. This ensures that catch by
one component of the fishery does not negatively affect another
component of the fishery. Based on preliminary FY 2013 catch
information, it does not appear that the United States will exceed its
quota for any of the transboundary Georges Bank stocks. However, if
final FY 2013 catch information indicates an overage has occurred, we
will reduce the FY 2014 U.S. quota for that stock in a future
management action. We will finalize FY 2013 catch information in
August/September 2014, and we will make any necessary adjustments as
close to this date as possible.
Table 1--Fishing Year 2014 U.S./Canada Quotas (mt, live weight) and Percent of Quota Allocated to Each Country,
in Parentheses
----------------------------------------------------------------------------------------------------------------
Eastern GB GB Yellowtail
Quota Eastern GB cod haddock flounder
----------------------------------------------------------------------------------------------------------------
Total Shared Quota........................................ 700 27,000 400
U.S. Quota................................................ 154 (22%) 10,530 (39%) 328 (82%)
Canada Quota.............................................. 546 (78%) 16,470 (61%) 72 (18%)
----------------------------------------------------------------------------------------------------------------
3. Catch Limits
The catch limits implemented in this action can be found in Tables
2 through 6. A brief summary of how these catch limits were developed
is provided below; however, more detail can be found in Appendix III to
the Framework 51 Environmental Assessment (see ADDRESSES for
information on how to get this document).
Last year, Framework 50 adopted FY 2013-2015 catch limits for all
groundfish stocks, except white hake and the three U.S./Canada stocks
that are set annually. A benchmark stock assessment for white hake was
completed in February 2013, and the results of this assessment became
available after the Council took final action on Framework 50. As a
result, the Council was not able to incorporate the new benchmark
results in time for setting FY 2013-2015 catch limits. Instead, we
implemented an emergency action for FY 2013 to increase the white hake
catch limit based on the February 2013 assessment, and to give the
Council time to respond to the new assessment. We are now implementing
FY 2014-2016 catch limits for white hake based on the recent stock
assessment, and consistent with the recommendation of the SSC. This
rule also adopts FY 2014 shared U.S./Canada quotas (see Item 2 in this
preamble), which are discussed in more detail below. For all stocks,
except GB cod, GB haddock, GB yellowtail flounder, and white hake, the
catch limits included in this action are identical to those previously
adopted in Framework 50.
[[Page 22427]]
There is no catch limit adopted for FY 2015 or FY 2016 for many
groundfish stocks. The Council will specify these catch limits in a
future management action once updated scientific information becomes
available.
Overfishing Limits and Acceptable Biological Catches
The overfishing limit (OFL) serves as the maximum amount of fish
that can be caught in a year without harming the stock. The OFL for
each stock is calculated using the estimated stock size and
FMSY (i.e., the fishing mortality rate that, if applied over
the long term, would result in maximum sustainable yield). The OFL does
not account for scientific uncertainty, so the Council's SSC typically
recommends an acceptable biological catch (ABC) that is lower than the
OFL in order to account for scientific uncertainty. Typically, the
greater the amount of scientific uncertainty, the lower the ABC is set
compared to the OFL. For GB cod, haddock, and yellowtail flounder, the
total ABC is further reduced by the amount of the Canadian quota. The
U.S. ABC is the amount available to the U.S. fishery after accounting
for Canadian catch.
GB Yellowtail Flounder
Both the 2013 TRAC assessment and the SSC noted concerns for the
poor performance of the stock assessment model for GB yellowtail
flounder. The assessment model has a strong retrospective pattern,
which causes stock size to be overestimated and fishing mortality to be
underestimated. Despite concerns for the uncertainties in the
assessment, and the performance of the assessment model, however, both
the TRAC and the SSC concluded that stock conditions are poor.
Recruitment for the stock remains low, and although the quota has been
reduced in recent years due to continually declining stock conditions,
all of the available information indicates that the stock has not
responded to these reductions. In addition, although the assessment is
highly uncertain, it was not rejected by either the TRAC or SSC.
The 2013 TRAC assessment concluded that 2014 catches well below 500
mt are likely needed to achieve the TMGC's harvest strategy for GB
yellowtail flounder, and that catch should be reduced as much as
possible from the 2013 quota of 500 mt. Consistent with the TRAC
assessment, the SSC recommended that catches not exceed 500 mt in FY
2014, and strongly recommended that catch be reduced as much as
practicable in light of concerns about the status of the stock. The SSC
also concluded that the OFL for GB yellowtail flounder cannot be
reliably estimated due to poor performance of the assessment model, and
as a result determined that the OFL is unknown.
When reviewing and approving any quota, we must determine that the
proposed quota has a sufficient probability of preventing overfishing.
To do this, we build off of the SSC's recommendation of an OFL and ABC.
When absolute values for the OFL are not readily available, any quota
recommendation must still meet the necessary requirements, and have at
least a 50-percent probability of preventing overfishing. Both the TRAC
results and the SSC's recommendation provide the necessary
directionality of the 2014 quota compared to 2013, as well as
information that can be used to determine the appropriate 2014 catch
limit that would have a sufficient probability of preventing
overfishing.
The results of the assessment model that are not adjusted for the
retrospective pattern indicate that 2014 catches at the fishing
mortality limit would be 562 mt. However, given the poor performance of
the assessment model, and because these results are not adjusted for
the retrospective pattern in the assessment, it is reasonable to
conclude that these results may be biased high. Because the unadjusted
model results from the assessment are likely biased high, the 2014
quota should have a greater uncertainty buffer than the Council's
standard default control rule (75% FMSY). A 2014 catch limit
of 400 mt is the maximum catch that would provide an additional
uncertainty buffer from the unadjusted model results to further account
for the uncertainties in the assessment. On the other hand, when the
model results are adjusted for the retrospective pattern, 2014 catches
at the fishing mortality limit would be 123 mt. In discussing the poor
performance of the assessment model, though, the SSC questioned the
magnitude of stock depletion, and noted that catch and survey trends
may suggest less concern is warranted than indicated by the assessment
model. As a result, the model results adjusted for the retrospective
pattern may be biased low.
Recent catches can also be used to evaluate what 2014 catch level
would be consistent with the TRAC and SSC's recommendations to reduce
catches as much as possible/practicable. Catches in 2012, which is the
most recent fishing year in which final catch information is available,
were approximately 480 mt, of which the United States caught 385 mt.
The U.S. share of the quota increases in 2014 from 43 percent in 2013
to 82 percent in 2014, and as a result, the 2014 TMGC recommendation of
400 mt would result in a U.S. quota of 328 mt, which is nearly equal to
the FY 2012 total U.S. catch. Similarly, although final 2013 catch
estimates will not be available until September 2014, if total 2013
catches are between 300-400 mt, a quota above 400 mt in 2014 would
likely allow catches to increase compared to recent years, which would
not be consistent with the TRAC and SSC's recommendation that catches
be reduced.
In addition, the FY 2013 catch limit for GB yellowtail flounder is
500 mt. Because the stock has declined further this past year, a status
quo catch limit in FY 2014 would not appropriately account for this
stock decline. The quota was reduced by more than 40 percent from 2011
to 2012, and again from 2012 to 2013, yet the 2013 TRAC assessment
indicates that the stock has not responded to these reductions. This
suggests that the 2014 quota should be further reduced from 2013 to
increase the likelihood that stock conditions will improve.
Based on all of these factors, we determined that 400 mt was the
total ABC for GB yellowtail flounder that would have a sufficient
probability of preventing overfishing, reduce catch consistent with the
TRAC and SSC advice, and provide for some stock growth. This
determination was provided to the TMGC in September 2013, and served as
the basis for the TMGC recommending 400 mt as the 2014 shared quota.
Despite alternative catch limits put forward by the Council's
Groundfish Oversight Committee, the Council ultimately adopted the
TMGC's recommendation in Framework 51, and a FY 2014 catch limit of 400
mt for GB yellowtail flounder is implemented through this action. Based
on the best scientific information available, a quota of 400 mt has at
least a median probability of preventing overfishing and increases the
likelihood that stock conditions will improve. This quota is also a 20-
percent reduction compared to the 2013 quota, which is consistent with
the TRAC and SSC's recommendation to reduce catches as much as
possible/practicable.
In response to concerns for the poor performance of the GB
yellowtail flounder stock assessment model, the TRAC conducted an
empirical benchmark assessment April 14-18, 2014, to examine an
alternative method for estimating abundance and setting catch limits
for the stock. The TRAC and TMGC will incorporate the results of the
benchmark assessment for providing 2015 catch advice for GB
[[Page 22428]]
yellowtail flounder, as appropriate. More information on the 2014
benchmark assessment can be found here: http://www.nefsc.noaa.gov/saw/trac/.
Annual Catch Limits
The U.S. ABC for each stock (for each fishing year) is divided
among the various fishery components to account for all sources of
fishing mortality. First, expected catch from state waters and the
``other'' sub-component is deducted from the U.S. ABC. These sub-
components are not subject to specific catch controls by the Groundfish
FMP. As a result, the state waters and ``other'' sub-components are not
allocations, and these components of the fishery are not subject to
accountability measures if the catch limits are exceeded. After the
state and other sub-components are deducted, the remaining portion of
the U.S. ABC is the amount available to the fishery components that
receive an allocation for the stock. Components of the fishery that
receive an allocation are subject to catch controls by the Groundfish
FMP, including accountability measures that are triggered if they
exceed their respective catch limit during the fishing year.
Once the U.S. ABC is divided, sub-annual catch limits (sub-ACLs)
are set by reducing the amount of the ABC distributed to each component
of the fishery to account for management uncertainty. Management
uncertainty is the likelihood that management measures will result in a
level of catch greater than expected. For each stock, management
uncertainty is estimated using the following criteria: Enforceability
and precision of management measures, adequacy of catch monitoring,
latent effort, and catch of groundfish in non-groundfish fisheries. The
total ACL is the sum of all of the sub-ACLs and ACL sub-components, and
is the catch limit for a particular year after accounting for both
scientific and management uncertainty. Landings and discards from all
fisheries (commercial and recreational groundfish fisheries, state
waters, and non-groundfish fisheries) are counted against the ACL.
For stocks allocated to sectors, the commercial groundfish sub-ACL
is further divided into the non-sector (common pool) sub-ACL and the
sector sub-ACL based on the total vessel enrollment in sectors and the
cumulative potential sector contributions associated with those
sectors. The sector and common pool sub-ACLs included in this action
are preliminary based on FY 2014 PSCs and FY 2013 sector rosters. FY
2014 sector rosters will not be finalized until May 1, 2014, because
individual permit holders have until the end of FY 2013, or April 30,
2014, to drop out of a sector and fish in the common pool fishery for
FY 2014. Therefore, it is possible that the sector and common pool
catch limits may change due to changes in the sector rosters. If
changes to the sector rosters occur, we will publish updated sector and
common pool sub-ACLs as soon as possible in FY 2014 to reflect final FY
2014 sector rosters as of May 1, 2014.
Common Pool Total Allowable Catches
The common pool sub-ACL for each stock (except for Southern New
England/Mid-Atlantic (SNE/MA) winter flounder, windowpane flounder,
ocean pout, Atlantic wolffish, and Atlantic halibut) is further divided
into trimester total allowable catches (TACs). The distribution of the
common pool sub-ACLs into trimesters was adopted by Amendment 16 and is
based on recent landing patterns. Once we project that 90 percent of
the trimester TAC is caught for a stock, the trimester TAC area for
that stock is closed for the remainder of the trimester to all common
pool vessels fishing with gear capable of catching that stock. Any
uncaught portions of the trimester TAC in Trimester 1 or Trimester 2
are carried forward to the next trimester. Overages of the Trimester 1
or Trimester 2 TAC are deducted from the Trimester 3 TAC. We are
required to deduct any overages of the total common pool sub-ACL from
the common pool sub-ACL for that stock in the next fishing year after
the overage. Uncaught portions of the Trimester 3 TAC may not be
carried over into the following fishing year. Table 5 summarizes the FY
2014 common pool trimester TACs implemented in this action based on the
preliminary common pool sub-ACL. If the FY 2014 common pool sub-ACL
changes based on final sector rosters, the FY 2014 trimester TACs will
also change. In addition, once we complete final catch estimates of FY
2013 common pool catch, we will deduct any overages of the common pool
sub-ACLs from the respective FY 2014 sub-ACLs. We will publish any
necessary adjustments as close to May 1, 2014, as possible.
Incidental catch TACs are also specified for certain stocks of
concern (i.e., stocks that are overfished or subject to overfishing)
for common pool vessels fishing in the special management programs
(i.e., special access programs (SAPs) and the Regular B Days-at-Sea
(DAS) Program), in order to limit the catch of these stocks under each
program. Tables 6 summarizes the Incidental Catch TACs for each stock
that are implemented by this action.
BILLING CODE 3510-22-P
[[Page 22429]]
[GRAPHIC] [TIFF OMITTED] TR22AP14.000
[[Page 22430]]
[GRAPHIC] [TIFF OMITTED] TR22AP14.001
[[Page 22431]]
[GRAPHIC] [TIFF OMITTED] TR22AP14.002
BILLING CODE 3510-22-C
Table 5--FYs 2014-2016 Common Pool Trimester TACs
[mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014 2015 2016
-----------------------------------------------------------------------------------------------------
Stock Trimester Trimester Trimester Trimester Trimester Trimester Trimester Trimester Trimester
1 2 3 1 2 3 1 2 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB Cod............................................ 7.6 11.3 11.6 9.8 14.4 14.8 ......... ......... .........
GOM Cod........................................... 4.9 6.6 6.8 4.9 6.6 6.8 ......... ......... .........
GB Haddock........................................ 15.0 18.3 22.2 34.0 41.6 50.4 ......... ......... .........
[[Page 22432]]
GOM Haddock....................................... 0.51 0.49 0.88 0.6 0.6 1.1 ......... ......... .........
GB Yellowtail Flounder............................ 0.6 0.9 1.6 ......... ......... ......... ......... ......... .........
SNE/MA Yellowtail Flounder........................ 19.9 35.0 39.7 19.9 35.1 39.9 ......... ......... .........
CC/GOM Yellowtail Flounder........................ 4.7 4.7 4.0 4.7 4.7 4.0 ......... ......... .........
American Plaice................................... 5.8 8.7 9.7 5.9 8.9 9.9 ......... ......... .........
Witch Flounder.................................... 2.9 3.3 4.5 2.9 3.3 4.5 ......... ......... .........
GB Winter Flounder................................ 1.7 5.1 14.7 ......... ......... ......... ......... ......... .........
GOM Winter Flounder............................... 9.8 10.0 6.6 ......... ......... ......... ......... ......... .........
Redfish........................................... 10.5 13.0 18.4 10.9 13.6 19.2 ......... ......... .........
White Hake........................................ 11.6 9.4 9.4 11.7 9.6 9.6 11.6 9.4 9.4
Pollock........................................... 26.0 32.5 34.3 ......... ......... ......... ......... ......... .........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: An empty cell indicates no catch limit has been specified yet. These catch limits will be specified in a future management action.
Table 6--FY 2014-2015 Incidental Catch TACs for Each Special Management Program
[mt, live weight]
----------------------------------------------------------------------------------------------------------------
Regular B DAS Program Closed area I hook gear Eastern U.S./Canada
-------------------------- haddock SAP haddock SAP
Stock ----------------------------------------------------
2014 2015 2014 2015 2014 2015
----------------------------------------------------------------------------------------------------------------
GB Cod........................... 0.3 0.3 0.1 0.1 0.2 0.2
GOM Cod.......................... 0.2 0.2 na na na na
GB Yellowtail Flounder........... 0.03 ........... na na 0.03 ...........
CC/GOM Yellowtail Flounder....... 0.1 0.1 na na na na
American Plaice.................. 1.2 1.2 na na na na
Witch Flounder................... 0.5 0.5 na na na na
SNE/MA Winter Flounder........... 1.4 1.4 na na na na
----------------------------------------------------------------------------------------------------------------
Note: An empty cell indicates no catch limit has been specified yet. These catch limits will be specified in a
future management action.
4. Small-Mesh Fisheries Accountability Measure for Georges Bank
Yellowtail Flounder
This rule establishes an accountability measures (AM) for GB
yellowtail flounder for the small-mesh fisheries, and applies the AM
retroactively to FY 2013 catches. For FY 2013 and beyond, Framework 48
adopted an allocation of GB yellowtail flounder for the small-mesh
fisheries due to concerns for the low stock size of GB yellowtail
flounder, and that these fisheries have accounted for a larger portion
of the total catch in recent years. For this allocation, the small-mesh
fisheries were defined as vessels fishing with otter trawl gear with a
codend mesh size of 5 inches (12.7 cm) or less. The target species for
these small-mesh fisheries typically include squid and whiting.
Corresponding AMs were not adopted last year because development of AMs
required close coordination with the Mid-Atlantic Fishery Management
Council, which is responsible for the Atlantic Mackerel, Squid, and
Butterfish Fishery Management Plan. As a result, Framework 48 specified
that AMs would be developed by the respective Fishery Management Plans
in a future management action through coordination of the New England
and Mid-Atlantic Councils.
The U.S./Canada Resource Sharing Understanding requires that, if
the U.S. quota for GB yellowtail flounder is exceeded, then the U.S.
quota for the following fishing year must be reduced by the amount of
the overage. The pound-for-pound reduction is applied to the sub-ACL of
the fishery component that caused the overage. For example, if the
small-mesh fisheries caused an overage of the U.S. quota in Year 1, the
small-mesh fisheries sub-ACL would be reduced by the amount of the
overage in the next fishing year (Year 2). This pound-for-pound
reduction serves as a reactive AM. However, the small-mesh fisheries
are currently required to discard all GB yellowtail flounder caught.
Thus, a pound-for-pound reduction of the quota, without corresponding
measures to help reduce catches of GB yellowtail flounder, would not
appropriately mitigate an overage, or prevent future overages from
occurring, for the small-mesh fisheries.
This rule implements an additional reactive AM that would require
vessels fishing with bottom otter trawl gear with a codend mesh size of
less than 5 in (12.7 cm) to fish with selective trawl gear in the GB
yellowtail flounder stock area (statistical areas 522, 525, 561, and
562) if the small-mesh fisheries sub-ACL is exceeded by any amount.
Currently, approved gear types include the raised footrope trawl,
separator trawl, rope trawl, Ruhle trawl, and mini-Ruhle trawl.
Additional gear types can be authorized by the Council in a future
management action, or approved by the Regional Administrator through
the gear-approval process defined at Sec. 648.85(b)(6). The AM would
be triggered regardless of whether the total ACL is exceeded. With the
exception of the GB yellowtail flounder AM for the scallop fishery,
this approach to triggering an AM is consistent with how other fishery
components are treated for allocated groundfish stocks (i.e.,
commercial and recreational groundfish fisheries and mid-water trawl
fishery). AMs linked to the sub-ACLs of the fishery ensure that each
component is held responsible for its catch of the respective stock.
The AM would only be implemented at the start of a fishing year
(May 1). This measure does not implement the AM inseason due to the
potential for disproportionate impacts on small-mesh vessels, which
operate at different times on Georges Bank, depending on the target
species. In addition, final catch information needed to evaluate GB
[[Page 22433]]
yellowtail flounder catch by the small-mesh fisheries is often not
available until well after the end of the fishing year. As a result, it
is possible that we would not be able to reliably determine whether an
overage has occurred in time to trigger the AM at the start of fishing
year immediately following an overage. The AM adopted in this action
accounts for this late data availability by potentially delaying the
implementation of the AM until the start of Year 3 (2 years following
the overage). As monitoring improves, and discard estimates are more
readily available for the small-mesh component of the fishery, we
anticipate that these AMs could be, and should be, implemented more
quickly.
If an overage of the small-mesh fisheries sub-ACL in Year 1 occurs,
the AM would be triggered:
At the start of Year 2 if, based on reliable data, NMFS
determine inseason during Year 1 that the small-mesh fisheries sub-ACL
has been exceeded; or
At the start of Year 3, if final catch estimates available
after the end of Year 1 indicate that the small-mesh fisheries sub-ACL
was exceeded in Year 1.
As noted before, the AM adopted in this action is applied
retroactively to FY 2013 catches. Final catch estimates for the small-
mesh fisheries will not be available until after the end of FY 2013
(August/September 2014). Because the AM is only implemented at the
start of a fishing year, if final FY 2013 catch estimates indicate an
overage has occurred, the AM would be triggered at the start of FY
2015. If necessary, we would notify the public and announce the AM in a
future rulemaking.
This AM will ensure that there are sufficient measures in place to
reduce catches of GB yellowtail flounder, should an overage occur, and
the small-mesh fisheries catch does not negatively affect other
components of the fishery. Due to the current low stock size of GB
yellowtail flounder, and because the stock is jointly managed with
Canada, it is especially important that the United States implement
sufficient management measures to help prevent overages of the U.S.
quota for GB yellowtail flounder, and if overages occur, to
sufficiently mitigate that overage.
5. U.S./Canada Quota Trading Mechanism
In 2013, the TMGC developed a U.S./Canada quota trading mechanism
that would provide more flexibility in setting annual U.S./Canada
quotas in order to create additional fishing opportunities. This action
adopts a 1-year mechanism for FY 2014 only that will allow the Regional
Administrator, in consultation with the Council, to adjust the U.S./
Canada quotas inseason consistent with any trade agreed upon with
Canada. Any additional quota that the United States receives from a
trade would be allocated to all of the fishery components consistent
with the current ABC distribution used by the Council in this action
for setting groundfish catch limits. Under this approach, both
groundfish and non-groundfish fisheries would potentially benefit from
additional quota, regardless of what fishery gave up quota for the
trade. For example, if the United States trades away eastern GB cod in
return for GB yellowtail flounder, the scallop and small-mesh fisheries
would benefit from the additional GB yellowtail flounder quota, even
though the commercial groundfish fishery was the only component to give
away its cod quota.
The Canadian fishing year is based on the calendar year, while the
U.S. groundfish fishing year is May 1-April 30. The difference between
the U.S. and Canadian fishing years allows a trade to occur for
adjacent years. Under the FY 2014 trading mechanism, a trade could
occur towards the end of the Canadian fishing year, when the U.S.
fishing year is only half completed. For example, if Canada
underharvests its quota, it could trade away its surplus quota to the
United States in the current fishing year, in return for additional
quota from the United States for the upcoming fishing year. Under this
mechanism, the United States would only receive additional quota in the
current fishing year, and would only trade away its quota for the
upcoming fishing year, prior to the start of the fishing year, and
before allocations are made to components of the U.S. fishery.
The trading mechanism adopted in this action will exist only for
quota trades made by, or before the end of, FY 2014. The Council
adopted a 1-year only trading mechanism so it could continue to explore
whether trades between the United States and Canada are practical under
this type of approach and while it considered other types of trading
mechanisms as part of Amendment 18 to the Groundfish FMP that would
better ensure the entities trading away quota would directly receive
quota in return.
6. Distribution of Eastern/Western Georges Bank Haddock Sector
Allocations
This rule adopts a mechanism that allows sectors to ``convert''
their eastern GB haddock allocation into western GB haddock allocation.
Although the groundfish fishery has not utilized a large portion of its
GB haddock allocation in recent years, this measure is intended to
prevent the Western U.S./Canada Area from prematurely closing to a
sector before its overall GB haddock allocation has been caught. This
measure provides additional flexibility for sectors to harvest their GB
haddock allocations, without increasing the risk of biological harm to
the stock. This measure is also intended to create additional fishing
opportunities for sector vessels on a healthy groundfish stock, and
better help the fishery achieve optimum yield.
Eastern GB haddock is a sub-unit of the total GB haddock stock, and
the total ABC for GB haddock includes the shared U.S./Canada quota for
eastern GB haddock. A portion of a sector's GB haddock allocation may
only be caught in the Eastern U.S./Canada Area, and the remaining
portion of their total GB haddock allocation can be caught only in the
Western U.S./Canada Area. This restriction was adopted by Amendment 16
in order to cap the amount of GB haddock that a sector could catch in
the Eastern U.S./Canada Area, and help prevent the United States from
exceeding its eastern GB haddock quota. However, limiting the amount of
haddock that could be caught in the Western U.S./Canada Area could
unnecessarily reduce flexibility, and potentially limit fishing in the
area, even if a sector has not caught its entire GB haddock allocation.
Thus, the measure adopted in this action is intended to avoid foregone
yield of a healthy, abundant groundfish stocks.
The measure adopted in this action follows a process similar to the
one used for processing sector trades. Sectors are allowed to convert
eastern GB haddock allocation into western GB haddock allocation at any
time during the fishing year, and up to 2 weeks into the following
fishing year to cover any overage during the previous fishing year. A
sector's proposed allocation conversion would be referred to, and
approved by, NMFS based on general issues, such as whether the sector
is complying with reporting or other administrative requirements,
including weekly sector reports, or member vessel compliance with
Vessel Trip Reporting requirements. Based on these factors, we will
notify the sector if the conversion is approved or disapproved. As we
proposed in the proposed rule, we will use member vessel compliance
with Vessel Trip Reporting requirements as the basis for approving, or
disapproving a re-allocation of eastern GB quota to the Western U.S./
Canada Area. This is identical to the process used for
[[Page 22434]]
reviewing, and approving, quota transfer requests between sectors.
The responsibility for ensuring that sufficient allocation is
available to cover the conversion is the responsibility of the sector.
This measure also extends to state-operated permit banks. Any
conversion of eastern GB haddock allocation into western GB haddock
allocation may only be made within a sector or permit bank, and not
between sectors or permit banks. In addition, once a portion of eastern
GB haddock allocation is converted to western GB haddock allocation,
that portion of allocation remains western GB haddock for the remainder
of the fishing year. Western GB haddock allocation may not be converted
to eastern GB haddock allocation. This measure does not change the
requirement that sector vessels may only catch their eastern GB haddock
allocation in the Eastern U.S./Canada Area, and may only catch the
remainder of their GB haddock allocation in the Western U.S./Canada
Area.
The total catch limit for GB haddock includes the U.S. quota for
eastern GB haddock, so this measure does not jeopardize the total ACL
for GB haddock, or the U.S. quota for the eastern portion of the stock.
A sector is still required to stop fishing in the Eastern U.S./Canada
Area once its entire eastern GB haddock allocation is caught, or in the
Western U.S./Canada Area once its western GB haddock allocation is
caught, at least until it leases in additional quota. This ensures
sufficient accountability for sector catch that will help prevent
overages of any GB haddock catch limit. Although we are approving this
measure, we recommend that the Council occasionally review this measure
in the future to ensure that it is still necessary and appropriate,
particularly if there is a drastic change in the stock assessment for
either GB haddock or its eastern sub-unit, or the perception of stock
status changes in the future.
7. Prohibition on Possession of Yellowtail Flounder by the Limited
Access Scallop Fishery
This action approves the prohibition on possession of yellowtail
flounder by all limited access scallop vessels that was adopted in
Framework 51. Prior to this action, limited-access scallop vessels were
required to land all legal-sized yellowtail flounder. This landing
requirement was adopted beginning in 2010 in order to reduce bycatch of
yellowtail flounder in the scallop fishery. However, recent information
indicates that some scallop vessels are ``targeting'' yellowtail
flounder. As a result, prohibiting possession of yellowtail flounder is
intended to remove any incentive for scallop vessels to ``target''
yellowtail flounder since they could not be retained, or sold.
National Standard 9 of the Magnuson-Stevens Act requires that
bycatch be reduced as much as practicable, where bycatch is defined as
``fish harvested in a fishery, but that are not sold or kept,'' and
refers to economic and regulatory discards. Thus, the prohibition on
possession of yellowtail flounder adopted in this action could increase
bycatch, as it is defined in the Magnuson-Stevens Act, compared to the
previous requirement to land all legal-sized yellowtail flounder.
However, from a broader conservation perspective, a more important
consideration is the impact on the total fishing mortality for each
yellowtail flounder stock. As described below, this action is expected
to decrease total fishing mortality for yellowtail flounder stocks.
The recent 2012 stock assessment for SNE/MA yellowtail flounder
reduced the discard mortality rate from 100 percent to 90 percent for
commercial catches. As a result, prohibiting possession of this stock
by limited access scallop vessels has the potential to slightly reduce
mortality on this yellowtail flounder stock assuming that some of the
discarded fish survive. The stock assessments for Cape Cod (CC)/GOM and
GB yellowtail flounder assume a 100-percent discard mortality rate, so
it is unclear whether zero possession has the same potential benefits
for these yellowtail flounder stocks as the SNE/MA stock. However, it
is reasonable to expect that some fish from these stocks, albeit a
small number, may survive after being discarded, thus reducing total
mortality on these stocks. Reducing total mortality, even slightly, is
particularly important for these yellowtail flounder stocks. Although
SNE/MA yellowtail flounder was declared rebuilt in 2012, CC/GOM and GB
yellowtail flounder are overfished and overfishing is occurring for
both stocks. Thus, even though this measure could increase bycatch, as
defined by the Magnuson-Stevens Act, it is not practicable to reduce
bycatch because to do so would likely increase overall mortality on
yellowtail flounder. The conservation benefits of further reducing
mortality of yellowtail flounder by the scallop fishery, therefore,
outweigh the potential for this measure to increase bycatch. As a
result, we have determined that the prohibition on possession adopted
in this action is consistent with National Standard 9, and other
conservation requirements, of the Magnuson-Stevens Act.
8. 2014 Windowpane Flounder Accountability Measures
In fall 2013, final catch information became available for FY 2012.
These final catch estimates indicated that the northern windowpane
flounder ACL was exceeded by 28 percent, and the southern windowpane
flounder ACL was exceeded by 36 percent. The FY 2012 final catch report
can be found here: http://www.nero.noaa.gov/ro/fso/reports/Groundfish_Catch_Accounting.htm. In addition, preliminary catch information for
FY 2013 indicates that the commercial groundfish fishery catch of ~235
mt has exceeded the overfishing limit for northern windowpane flounder
(202 mt). The most recent FY 2013 catch monitoring report can be found
here: http://www.nero.noaa.gov/ro/fso/reports/Sectors/Commercial_Summary_2013.html.
These overages will automatically trigger AMs beginning in FY 2014
that require selective trawl gear to be used in certain parts of the
stock areas for both windowpane flounder stocks. For the entire 2014
fishing year, common pool and sector vessels fishing on a groundfish
trip with trawl gear are required to use one of the following selective
trawl gears when fishing in the AM areas: (1) Haddock separator trawl;
(2) Ruhle trawl; (3) mini-Ruhle trawl; or (4) rope separator trawl.
There are no restrictions on longline or gillnet gear. These gear
restrictions will apply in the large AM areas for both northern and
southern windowpane flounder because the overages were more than 20
percent of the ACL for both stocks (maps and coordinates of the AM
areas can be found here: http://www.nero.noaa.gov/regs/infodocs/windowpaneaminfosheet.pdf). As a reminder, sectors cannot request an
exemption from these AMs. As long as additional overages do not occur,
the AM would be removed at the start of the 2015 fishing year,
beginning on May 1, 2015, unless the AMs are otherwise revised through
a Council action during FY 2014. In February 2014, the Council
initiated a new action to review and possibly revise the windowpane
flounder AMs due to concern that the existing AMs do not effectively
prevent overages of the windowpane flounder catch limits.
The FY 2014 windowpane flounder AMs will not impact non-groundfish
fisheries because these fisheries did not have an allocation of either
windowpane flounder stock for FY 2012. Although these non-groundfish
[[Page 22435]]
fisheries may have contributed to the 2012 overages, the commercial
groundfish fishery will be held 100-percent accountable for the
overage. For FY 2013 and beyond, at the Council's recommendation, we
approved the allocation of southern windowpane to the scallop fishery
and other non-groundfish fisheries fishing with bottom otter trawl gear
with codend mesh of 5 inches (12.7 cm) or greater. Allocating this
stock to other fisheries will help ensure that each fishery is held
accountable for their catch in the future, and that catch from one
fishery cannot negatively impact another. For FY 2013 and beyond, any
AM triggered for southern windowpane will only apply to the fishery
that caused the overage, except in the situation where the state waters
sub-component caused the overage. Northern windowpane is still not
allocated to any non-groundfish fishery, so the groundfish fishery will
continue to be held 100-percent accountable for any overages of the
northern windowpane catch limit, regardless of what fishery caused the
overage.
9. Annual Measures for FY 2014 Under Regional Administrator Authority
The Groundfish FMP gives us authority to implement certain types of
management measures for the common pool fishery, the U.S./Canada
Management Area, and Special Management Programs on an annual basis, or
as needed. This rule implements FY 2014 DAS possession limits and
maximum trip limits for common pool vessels (Table 7), including cod
possession and trip limits for vessels fishing with a Handgear A,
Handgear B, or Small Vessel Category permits (Table 8). These measures
are not part of Framework 51, and were not specifically proposed by the
Council, but are included in conjunction with Framework 51 for
expediency purposes, and because they relate to the catch limits
implemented in this rule. The initial FY 2014 possession limits and
maximum trip limits were developed after considering changes to the FY
2014 common pool sub-ACLs and sector rosters, trimester TACs for FY
2014, catch rates of each stock during FY 2013, and public comments
received on the proposed limits. During the fishing year, we will
monitor common pool catches, and if necessary will adjust these trips
limits in a future action to avoid overages, or help the fishery
harvest its allocations.
The default cod trip limit is 300 lb (136.1 kg) per trip for
Handgear A vessels and 75 lb (34.0 kg) per trip for Handgear B vessels.
If the GOM or GB cod DAS possession limit drops below 300 lb (136.1
kg), then the respective Handgear A cod trip limit must also be
adjusted to be the same. The regulations also require that the Handgear
B vessel trip limit for GOM and GB cod be adjusted proportionally
(rounded up to the nearest 25 lb (11.3 kg)) to the default cod
possession limits applicable to DAS vessels. This action implements a
GOM cod possession limit of 200 lb (90.7 kg) per DAS for vessels
fishing on a groundfish DAS, which is 75 percent lower than the default
trip limit in the regulations. Accordingly, the GOM cod trip limit is
reduced to 200 lb (90.7 kg) per trip for Handgear A vessels and to 25
lb (11.3 kg) per trip for Handgear B vessels.
Vessels with a Small Vessel category permit can possess up to 300
lb (136.1 kg) of cod, haddock, and yellowtail flounder, combined, per
trip. For FY 2014, the maximum amount of GOM cod and haddock within the
300-lb (136.1-kg) trip limit is set equal to the DAS possession limits,
which results in a maximum of 200 lb (90.7 kg) per trip for GOM cod and
25 lb (11.3 kg) for GOM haddock.
Table 7--Initial FY 2014 Common Pool DAS Possession Limits and Trip
Limits
------------------------------------------------------------------------
Initial FY 2014 possession and
Stock trip limits
------------------------------------------------------------------------
GB cod................................. 2,000 lb (907.2 kg) per DAS, up
to 20,000 lb (9,072 kg) per
trip.
GOM cod................................ 200 lb (90.7 kg) per DAS, up to
600 lb (272.2 kg) per trip.
GB Haddock............................. 10,000 lb (4,535.9 kg) per
trip.
GOM Haddock............................ 25 lb (11.3 kg) per trip.
GB Yellowtail Flounder................. 100 lb (45.4 kg) per trip.
SNE/MA Yellowtail Flounder............. 2,000 lb (907.2 kg) per DAS, up
to 6,000 lb (2,721.6 kg) per
trip.
CC/GOM Yellowtail Flounder............. 1,000 lb (453.6 kg) per trip.
American plaice........................ Unlimited.
Witch Flounder......................... 500 lb (226.8 kg) per trip.
GB Winter Flounder..................... 1,000 lb (453.6 kg) per trip.
GOM Winter Flounder.................... 1,000 lb (453.6 kg) per trip.
SNE/MA Winter Flounder................. 1,500 lb (680.4 kg) per DAS up
to 2,000 lb (1,360.8 kg) per
trip.
Redfish................................ Unlimited.
White hake............................. 1,000 lb (453.6 kg) per trip.
Pollock................................ 10,000 lb (4,535.9 kg) per
trip.
Atlantic Halibut....................... 1 fish per trip.
--------------------------------
Windowpane Flounder.................... Possession Prohibited.
Ocean Pout
Atlantic Wolffish
------------------------------------------------------------------------
Table 8--Initial FY 2014 Cod Possession and Trip Limits for Handgear A, Handgear B, and Small Vessel Category
Permits
----------------------------------------------------------------------------------------------------------------
Initial FY 2014 GOM Cod
Permit possession/trip limit Initial FY 2014 GB Cod possession/trip limit
----------------------------------------------------------------------------------------------------------------
Handgear A............................ 200 lb (45.4 kg) per trip 300 lb (136.1 kg) per trip.
Handgear B............................ 25 lb (11.3 kg) per trip. 75 lb (34.0 kg) per trip.
-------------------------------------------------------------------------
[[Page 22436]]
Small Vessel Category................. 300 lb (136.1 kg) of cod, haddock, and yellowtail flounder combined;
Maximum of 200 lb (90.7 kg) of GOM cod and 25 lb (11.3 kg) per trip of
GOM haddock within the 300-lb combined possession limit.
----------------------------------------------------------------------------------------------------------------
The RA has the authority to determine the allocation of the total
number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP
based on several criteria, including the GB yellowtail flounder catch
limit and the amount of GB yellowtail flounder caught outside of the
SAP. In 2005, Framework 40B (70 FR 31323; June 1, 2005) implemented a
provision that no trips should be allocated to the Closed Area II
Yellowtail Flounder/Haddock SAP if the available GB yellowtail flounder
catch is insufficient to support at least 150 trips with a 15,000-lb
(6,804-kg) trip limit (or 2,250,000 lb (1,020,600 kg). This calculation
accounts for the projected catch from the area outside the SAP. Based
on the GB yellowtail groundfish sub-ACL of 561,077 lb (254,500 kg)
adopted in this action, there is insufficient GB yellowtail flounder to
allocate any trips to the SAP, even if the projected catch from outside
the SAP area is zero. Therefore, this action does not allocate any
trips to the Closed Area II Yellowtail Flounder/Haddock SAP for FY
2014. Vessels can still fish in this SAP in FY 2014 using a haddock
separator trawl, a Ruhle trawl, or hook gear. Vessels are not allowed
to fish in this SAP using flounder nets.
10. Regulatory Corrections Under Regional Administrator Authority
The following changes are being made to the regulations to correct
references, inadvertent deletions, and other minor errors.
In Sec. 648.80(g)(5)(i), this rule corrects the reference to the
mesh obstruction or constriction definition.
In Sec. 648.85(b)(6)(iv)(B), the observer call-in requirement
under the B DAS program is corrected to 48 hr prior to the start of the
trip, instead of 72 hr prior to the start of the trip. This change was
inadvertently omitted during the Amendment 16 rulemaking.
This rule removes Sec. 648.87(b)(1)(i)(F) and (G). This regulatory
text was added as part of NMFS's emergency rule for addressing sector
carryover for FY 2013. This regulatory text was supposed to expire on
April 30, 2014 but was inadvertently left in the regulations
permanently.
In Sec. 648.87(c)(2), this rule clarifies that sector exemptions
are limited to those regulations implementing the groundfish program,
and not any regulation applicable to a groundfish vessel. This
regulatory correction clarifies the intent of Amendment 16.
In Sec. 648.90(a)(4)(i), this rule reinstates the regulatory text
describing the ABC and ACL recommendation process, which was
inadvertently deleted in a previous rulemaking.
In Sec. 648.90(a)(5)(iv), this rule reinstates the regulatory text
describing the trigger of the scallop fishery accountability measures,
which was inadvertently deleted in a previous rulemaking.
In Sec. 697.7(c)(1)(xxii) and (c)(2)(xvii), this rule replaces the
word ``traps'' with ``lobster traps.'' This correction is intended to
clarify that the lobster regulations do not prohibit Federal lobster
permit holders from possessing, or using, non-lobster trap gear on
trips fishing with a method other than traps (e.g., mobile trawl gear).
NMFS defines a lobster trap as ``any structure or other device,
other than a net, that is placed, or designed to be placed, on the
ocean bottom and is designed for or is capable of, catching lobsters.''
This definition applies to all Federal lobster permit holders
regardless of whether the permit holder might actually be targeting a
different species with the trap (e.g., crab or fish traps). Federal
lobster permit holders are prohibited from possessing, or using,
lobster traps on any trip that catches lobster with non-trap gear
(e.g., trawl gear). However, trap gear that is configured in such a way
so that it is not capable of catching lobster is not considered
``lobster trap'' gear. As a result, Federal lobster permit holders are
allowed to possess, and use, non-lobster trap gear on board their
vessel even if harvesting lobster with gear other than lobster traps
(e.g., trawl gear).
Comments and Responses on Measures Proposed in the Framework 51
Proposed Rule
We received nine comments during the comment period on the
Framework 51 proposed rule. Public comments were submitted by the
Council, three commercial fishing organizations, one non-governmental
organization (NGO), and four commercial fishermen. We requested
specific comment on several measures proposed in Framework 51,
including the rebuilding plan review analysis for GOM cod and American
plaice, the revised discard strata for GB yellowtail flounder, and the
prohibition on possession of yellowtail flounder for limited access
scallop vessels. Responses to the comments received are below, and when
possible, responses to similar comments on the proposed measures have
been consolidated.
Gulf of Maine Cod and American Plaice Rebuilding Programs
Revised Rebuilding Strategies
Comment 1: One industry group supported the revised rebuilding
programs for GOM cod and plaice.
Response: We agree with this commenter and have determined that the
revised rebuilding programs adopted in this action are consistent with
the Magnuson-Stevens Act and the goals and objectives of the Groundfish
FMP. In May 2012, we notified the Council that GOM cod and plaice were
not making adequate rebuilding progress, and as a result, the Council
was required to revise the rebuilding program for this stock within 2
years, or by May 1, 2014. The revised rebuilding programs implemented
in this action are consistent with the Council's mandate to devise new
rebuilding strategies for these stocks while continuing to prevent
overfishing. As explained in more detail in Item 1 of this preamble,
the revised rebuilding strategies use the maximum 10 years allowed by
the Magnuson-Stevens Act and have a median probability of success. The
rebuilding strategies account for the needs of fishing communities as
much as practicable, and also use a more precautionary approach than
the previous rebuilding programs for these stocks, in order to
accelerate the rebuilding timeline and increase the likelihood of
rebuilding success.
Comment 2: One NGO opposed the proposed 10-year rebuilding programs
for GOM cod. The commenter noted that, due to the low levels of GOM
cod,
[[Page 22437]]
rebuilding should be as short as biologically possible, and catch
levels should be set as close to zero as possible. In support of its
position, the NGO stated that the needs of the fish stock outweigh the
needs of fishing communities in this case.
Response: We disagree with the commenter's suggestion that
rebuilding should be as short as biologically possible, and catch
levels should be set as close to zero as possible. The Magnuson-Stevens
Act does not require that rebuilding programs be as short as
biologically possible, but rather that rebuilding programs be as short
as possible, not to exceed 10 years, while accounting for the needs of
fishing communities. The fact that this action revises a rebuilding
program that was not making adequate progress does not change this
requirement. Although the Magnuson-Stevens Act requirement emphasizes
the importance of rebuilding as quickly as possible, a plan cannot
disregard the needs of fishing communities, and is not required to keep
fishing mortality as close to zero as possible for the entire duration
of the rebuilding time period, particularly, as in the case of this
action, where precautionary measures are put into place to account for
uncertainties in predicting the success of a rebuilding program. A
revised rebuilding program that is as short as biologically possible,
as the commenter suggested, would be nearly equivalent to
Tmin, which is the time it would take a stock to rebuild in
the absence of all fishing mortality. This type of rebuilding program
would not mitigate economic impacts on fishing communities to the
extent practicable consistent with National Standard of the Magnuson-
Stevens Act. As explained in detail in Item 1 of this preamble, the
revised rebuilding strategy for GOM cod that is adopted in this action
appropriately addresses the needs of fishing communities in light of
conservation requirements, and is consistent with all of the National
Standards and applicable law.
Moreover, as the commenter noted, greater scientific uncertainty
typically calls for greater precaution in setting management measures,
and we agree. This is the intended effect in the design of the revised
rebuilding strategy for GOM cod that is adopted in this action. The
rebuilding strategy has a median probability of success, which is
consistent with the relevant case law, but it goes one step further,
and attempts to account for scientific uncertainty in long-term
groundfish catch projections, which is well-documented in recent years.
The design of the rebuilding strategy is briefly summarized below, but
is described in more detail in Item 1 of this preamble that is not
repeated here.
Given the relative infrequency of groundfish stock assessments,
there is often a considerable lag between the terminal year of the
assessment and the year of the catch advice. As a result, when catches
are based on only Frebuild, they are often based on
assumptions used in the catch projection (e.g., recruitment
assumption), rather than any real evidence that the stock biomass has
increased. The rebuilding strategy implemented in this action
explicitly acknowledges this issue and, in response, is designed to set
catches lower than Frebuild, at least initially in the
rebuilding program, in order to account for this uncertainty. Setting
catches lower than Frebuild accelerates the rebuilding
timeline and is intended to increase the likelihood that rebuilding
will occur on schedule. This is an important component of the
rebuilding program adopted in this action, and a marked improvement
from the previous rebuilding program for GOM cod that did not attempt
to account for scientific uncertainty in the catch projections.
An assessment update for GOM cod is preliminarily scheduled for
early 2015. This would provide a unique opportunity early in the
rebuilding program adopted in this action to determine whether the
stock is on its rebuilding trajectory. Based on the updated scientific
information, the Council could adequately assess whether any additional
adjustments are necessary to ensure the stock is making adequate
rebuilding progress.
Comment 3: One NGO opposed the SSC's catch recommendations for GOM
cod and noted there should be no directed fishing for this stock. The
NGO also opposed our interpretation that two equally acceptable
assessment models were approved for GOM cod.
Response: As noted earlier in Item 3 of this preamble, Framework 51
does not set specifications for GOM cod. The FY 2013-2015 catch limits
for GOM cod were adopted and approved through Framework 50 last year
and these catch limits were recently upheld by a federal district
court. These catch limits are restated in this action, but are
unchanged from those recommended by the SSC and subsequently adopted by
the Council in Framework 50. Further, this action does not consider any
management measures that would necessarily prevent directed fishing on
GOM cod. As a result, this comment does not directly address the
proposed measures, and is not relevant to the final measures adopted in
this action.
To provide some background, however, two ABC alternatives were
considered in Framework 50: 1,249 mt and 1,550 mt. Based on the
recommendation of its SSC, and in order to help mitigate the economic
impacts of Framework 50 on fishing communities, the Council adopted,
and we approved, an ABC of 1,550 mt. These specifications adopted in
Framework 50 were determined to be based on the best scientific
information available, and consistent with conservation objectives of
the Groundfish FMP and applicable law. In fact, when recently
challenged on the GOM cod specifications adopted in Framework 50 on the
grounds that the specifications did not prevent overfishing, and
exceeded the recommendation of the SSC, the Court found that the
Council and NMFS did not err in selecting a catch limit of 1,550 mt.
Specifically, the Court found that the GOM cod specifications were
based on the best available scientific information, and that available
analysis adequately demonstrated that the catch limits will have an
adequate probability of preventing overfishing. See, Conservation Law
Foundation v. Pritzker, 2014 WL 1338596 (D.D.C. 2014).
We disagree with the commenter's proposal that the fishery should
be closed to directed fishing for cod. Given the substantial reduction
in the GOM cod quota that was implemented beginning in FY 2013, it is
unlikely that cod is currently a primary directed species. Rather, most
commercial groundfish vessels likely use their available cod quota to
prosecute other fisheries. Similarly, available information indicates
that the recreational retention rates for GOM cod are extremely low; on
average, slightly more than 1 cod was retained by anglers in FY 2013.
We are unclear on whether the commenter intended that trip limits be
implemented for sector vessels in order to prevent directed fishing on
GOM cod, or whether possession of the stock should be prohibited.
Regardless, both the commercial and recreational groundfish fisheries
receive allocations of cod, which, in addition to other management
measures and accountability measures, help prevent catches from
exceeding these allocations. In addition, sector vessels have the
flexibility to make business plans and fish as efficiently as possible
in order to maximize revenues with available allocations.
Appropriately set catch limits is the fundamental basis to
management measures, and so long as accountability measures for the
fishery adequately
[[Page 22438]]
prevent and address overages of these catch limits, groundfish vessels
should, whenever possible, be provided with flexibility for determining
how best to harvest the available quotas. The Council could consider
additional management measures, such as trip limits or a prohibition on
possession, if updated information indicated these measures were
necessary to meet the goals and objectives of the Groundfish FMP, or
more specifically, conservation objectives for GOM cod.
Rebuilding Plan Review Analysis
Comment 4: The Council and one commercial fishing organization
supported the proposed rebuilding plan review analysis for GOM cod and
plaice. The Council commented that this measure would commit the
Council to a formal, thorough review of rebuilding progress and provide
the Council with necessary information for decision-making. The Council
also noted that, often times, investigation of why rebuilding has not
occurred as expected is not a standard term of reference for stock
assessments, and this type of investigation can be cursory. Lastly, the
Council also commented that the current biennial review process does
not revisit reference points.
Response: We agree that the review analysis provides a formal
process for the Council, and its technical bodies, to follow should GOM
cod or plaice fall below their rebuilding trajectories, and the other
relevant criteria be met. However, we disagree with the Council's
assertion that recent groundfish stock assessments have not
investigated why rebuilding has not occurred as expected. A stock
assessment typically evaluates the stock's current biomass levels
compared to levels estimated in the prior stock assessment. As part of
this exercise, the assessment will investigate why estimated levels may
have changed from the previous assessment, and will also review the
performance of historical projections with respect to stock size, catch
recruitment, and fishing mortality, as the Council's comment notes.
The Council also notes that the assessments do not compare fishing
year catches to annual catch limits, which is the first of three
criteria that must be met to initiate the rebuilding plan review. This
comment ignores the Council's own biennial review process. The existing
biennial review process specifies that the Groundfish Plan Development
Team (PDT) shall review available catch data, including landings and
discard information. In general, because stock assessments are based on
the calendar year, which does not align with the groundfish fishing
year (May 1-April 30) for which annual catch limits are set, fishing
year catches are not compared to the annual catch limits in the stock
assessment. Instead, the PDT does, and should, review and evaluate
annual fishing year catches compared to the pertinent annual catch
limits in order to develop and recommend appropriate management options
that achieve the goals and objectives of the Groundfish FMP. Although
``compare fishing year catches to annual catch limits'' is not an
explicitly stated as part of the Council's biennial review process,
this could be added as an additional step in the biennial review
process, or the preparation of the annual Sock Assessment and Fishery
Evaluation report or the biennial review process in a future management
action. A review of fishing year catches compared to annual catch
limits should not be reserved only for times when a stock falls below
its rebuilding trajectory, and instead should be a routine task for the
Groundfish PDT.
To clarify the Council's comment that the existing biennial review
process does not revisit reference points, it is important to note that
there is no guarantee the review of the biomass reference points in the
rebuilding review analysis will result in any revisions to the biomass
reference points. The only analyses that would be sufficient to revise
biomass reference points, and thus provide new catch advice options
based on those revised reference points, would be another stock
assessment.
The Council's comment did not provide further clarification on our
concerns for the portions of the rebuilding plan review analysis that
are obsolete because this action adopts rebuilding plans that already
use the maximum 10 years allowed by the Magnuson-Stevens Act. As a
result, we are only partially approving the rebuilding plan review
analysis, and have removed the unnecessary and redundant criteria
related to considering an extension of the rebuilding program to the
maximum 10 years allowed. We explain this partial approval in more
detail earlier in this preamble, and this explanation is not repeated
here. If this rebuilding review analysis is adopted for other stocks in
the future, and those stocks do not already use the maximum 10 years
allowed, the Council could include a necessary step that considers
extending the rebuilding plan to 10 years, so long as that criteria is
relevant to the pertinent stock's rebuilding program.
U.S./Canada Quotas and White Hake Catch Limits
Comment 5: One commercial fishing organization supported the
proposed U.S./Canada quotas and the white hake catch limits.
Response: We acknowledge the commenter's support of the U.S./Canada
quotas and the white hake catch limits. The most recent stock
assessment for white hake that was completed in February 2013 indicated
that the stock is no longer overfished, and no longer subject to
overfishing. In addition, projections from the assessment show that
white hake is expected to reach its rebuilt level in 2014, which is the
target year for rebuilding this stock. Due to this improved stock
status, we implemented an emergency action for FY 2013 to increase the
white hake catch limit based on the results of the 2013 assessment. We
implemented this emergency action because the assessment results became
available after the Council took final action on Framework 50, which
set FY 2013-2015 specifications for nearly all groundfish stocks, in
order to give the Council time to incorporate this updated information.
Framework 51 adopted FY 2014-2016 catch limits for white hake based on
the new assessment and on the recommendations of the SSC. As a result,
we determined that these catch limits are consistent with the best
scientific information available, and are approving them in this final
rule. The catch limits adopted in this action for FY 2014-2016 will be
a 10-percent increase compared to FY 2013.
Similarly, we determined that the FY 2014 U.S./Canada quotas
adopted in Framework 51 are consistent with the best scientific
information available, the TMGC recommendations and, for Georges Bank
yellowtail flounder, the SSC's recommendation. As a result, we are
approving these shared U.S./Canada quotas in this final rule. These
determinations are more fully described in Items 2 and 3 of this
preamble, and are not repeated here.
Small-Mesh Fisheries Accountability Measure for Georges Bank Yellowtail
Flounder
Comment 6: One commercial fishing organization supported the
proposed AM for GB yellowtail flounder for the small-mesh fisheries.
Response: We acknowledge the commenter's support of the AM for GB
yellowtail flounder for the small-mesh fisheries. As more fully
described in Item 4 of this preamble, an additional AM for the small-
mesh fisheries was required following the allocation of GB
[[Page 22439]]
yellowtail flounder to these fisheries for FY 2013 and beyond. The
proposed AM would require selective trawl gear in the GB yellowtail
flounder stock area if the small-mesh fisheries exceed their
allocation. This gear-based AM, coupled with a pound-for-pound payback
should the small-mesh fisheries cause the overall U.S. quota to be
exceeded, will help ensure that sufficient measures are in place to
reduce catch of GB yellowtail flounder should an overage occur.
Triggering the small-mesh fisheries AM based on an overage of their
allocation will help ensure that catch from this component of the
fishery does not negatively affect other components of the fishery,
particularly the commercial groundfish fishery. With the exception of
the scallop fishery AM for yellowtail flounder, which is only triggered
if the overall catch limit is exceeded or the scallop fishery exceeds
its allocation by 50 percent or more, AMs for allocated groundfish
stocks are triggered if a fishery exceeds its specific allocation,
regardless of whether the overall catch limit is exceeded.
The proposed AM can be implemented up to 2 years after an overage,
which is consistent with the approach used for other groundfish AMs.
Due to data availability used to estimate catch from state waters and
non-groundfish fisheries, we typically do not receive final catch
estimates until after the fishing year ends. In addition, small-mesh
vessels operate at different times on Georges Bank depending on the
target species (i.e., squid and whiting). In order to avoid
disproportionate impacts of the AM on small-mesh vessels that could
occur if the AM is implemented inseason, the AM is only implemented at
the start of the fishing year. For all these reasons, we determined
that the proposed AM is consistent with the necessary requirements of
the Magnuson-Stevens Act and other applicable law, and are approving
this measure.
U.S./Canada Quota Trading Mechanism
Comment 7: One commercial fishing organization and one commercial
fisherman opposed the proposed U.S./Canada quota trading mechanism
because, in their view, it would not provide specific opportunities for
the groundfish industry to provide input on any potential trade, and it
would allow all fisheries to benefit from a trade regardless of the
fishery that traded away its quota.
Response: We disagree that the groundfish industry would not have
specific opportunities to provide input on a potential trade. The
trading mechanism adopted in this action requires that the Regional
Administrator consult with the Council prior to making any trade,
thereby providing the groundfish industry an opportunity to provide
input through the Council's public participation process. In addition
to the consultation with the Council, the U.S. TMGC would also
participate in specifying any potential trade, which provides an
additional opportunity for the groundfish industry to provide input
through the Council's appointees on the U.S. TMGC.
We realize the concern of the commenters that all fisheries would
benefit from a trade regardless of whether those fisheries gave up any
of their quota. This was anticipated and considered during the
development of Framework 51. We determined that a more simplified
trading mechanism that used the Council's current ABC distribution
schedule was the best option for an initial attempt at allowing
trading, and that could be done through a framework action. Other types
of trading mechanisms that allow only a single fishery component to
participate in trades with Canada, and benefit from additional quota
received from Canada, were determined to be beyond the scope of a
framework action, and options that the Council would have to consider
in an amendment. As a result, the Council adopted the trading mechanism
that is approved in this action only for 1 year, and the mechanism will
only apply to trades made before the end of FY 2014. This was intended
to put a mechanism in place while the Council continued to work on
development of a long-term trading mechanism for FY 2015 and beyond in
Amendment 18 that would address the commenters' concerns for industry
participation and inclusion of only those fishery components that gave
away quota.
In addition, although this action establishes a 1-year trading
mechanism, this action does not guarantee, or lock in, any trade for FY
2014. If a potential trade was being considered in FY 2014, we would
still have to consult with the Council, including the other respective
U.S./Canada management bodies, before any trade was agreed upon with
Canada. We will ensure that the appropriate groups have ample time to
provide input on any potential trade, should one become available, and
will consider all input when determining whether to make a trade with
Canada.
Distribution of Eastern/Western Georges Bank Haddock Sector Allocations
Comment 8: One commercial fishing organization supported the
measure to allow sectors to ``convert'' a portion of their eastern GB
haddock allocation to western GB haddock allocation and noted that this
measure will provide sectors with additional flexibility. The commenter
also noted that this measure successfully utilizes the sector system as
a tool to develop management solutions.
Response: We agree that this measure will provide sectors with
additional flexibility for harvesting their GB haddock allocations, and
that this measure is a good example of the benefits the sector program
can provide. As described in detail in Item 6 of this preamble, it was
possible that the existing regulations could limit the amount of
haddock that could be caught in the Western U.S./Canada Area and
unnecessarily constrain a sector's catch of GB haddock. If this
situation occurred, it could prevent a sector from harvesting its
entire GB haddock allocation, which ultimately could prevent the
fishery from achieving optimum yield. Any impediment for achieving
optimum yield for this stock is particularly important given the
healthy status of GB haddock, and the low levels of other key
groundfish stocks, which have resulted in substantial economic losses
for the groundfish fishery. The measure adopted in this action
addresses this problem, and ensures that sector vessels have increased
flexibility for harvesting a healthy stock.
Comment 9: One commercial fisherman opposed the measure to allow
sectors to ``convert'' a portion of their eastern GB haddock allocation
to western GB haddock allocation and noted that this measure opens
``Pandora's Box'' to revisit stock boundaries. The commenter also
questioned why this measure was adopted only for GB haddock, and not GB
cod.
Response: We disagree that this measure opens the door for re-
visiting stock boundaries. As explained in more detail in Item 6 of
this preamble, the eastern portion of the GB haddock stock is a sub-
unit of the total GB haddock stock. The total ABC for GB haddock
includes the U.S./Canada quota for eastern GB haddock. As a result,
this measure does not draw into question, or refute, the existing stock
boundaries of GB haddock. Rather, it attempts to provide additional
flexibility for sectors to harvest GB haddock in both the Eastern and
Western U.S./Canada Areas, recognizing that so long as the total catch
limit for GB haddock is not exceeded, this measure does not jeopardize
any conservation objectives for GB haddock. Due to the current
situation for GB haddock, no action had the potential to prematurely
shut down the Western U.S./Canada Area should
[[Page 22440]]
sectors begin to utilize more of their GB haddock allocations. There is
a large year class for GB haddock that has begun to recruit to the
fishery, so although it is too early to tell whether quota utilization
for GB haddock will increase in FY 2014, the measure adopted in this
action is intended to proactively adjust management measures should
sectors begin to harvest more GB haddock.
The measure adopted in this action was determined to not have any
negative biological implications for GB haddock; however, this same
determination would not necessarily be true for GB cod. Under the
assumption that cod mix freely on Georges Bank between the Eastern and
Western U.S./Canada Areas, then this measure applied to GB cod would
likely not increase any biological risk to the stock. However, larger
cod tend to be aggregated more in the Eastern U.S./Canada Area. Further
the status of GB cod is dramatically different than GB haddock. GB cod
is overfished and overfishing is occurring. This measure was not
considered for GB cod because the issue only existed for GB haddock,
but further, this measure would likely not be appropriate for GB cod
given the potential to have negative biological consequences on a
depleted stock.
In our approval of this measure for GB haddock in this action, we
do recommend that the Council should occasionally review the measure in
the future to ensure that it is still necessary and appropriate,
particularly if there is a drastic change in the stock assessment for
either GB haddock or its eastern sub-unit, or the perception of stock
status changes in the future.
Georges Bank Yellowtail Flounder Discard Strata
Comment 10: The Council commented on the proposed discard strata
for GB yellowtail flounder, and noted that this measure was not an
``either/or'' situation relative to the development of a [non-
regulatory] discard tool for sectors, though the Council did express a
preference for the sector discard tool over the revised discard strata
for GB yellowtail flounder. The Council briefly summarized the proposed
measure and noted that the measure would result in increased accuracy
of discard estimates with adequate observer coverage, and that the
sector discard tool would not provide the same increased accuracy.
Response: We agree that the proposed measure was not necessarily an
``either/or'' situation relative to the development of a discard tool
for sectors. As a result, we reviewed the proposed discard strata for
GB yellowtail flounder on its merits, and for its consistency with the
relevant National Standards of the Magnuson-Stevens Act. As explained
earlier in this preamble, we disapproved this measure because we
determined it was not consistent with National Standards 5 and 7, and
would likely lack any measurable benefits. However, because the Council
expressed a preference that a non-regulatory discard tool be developed
for sectors, we did consider this as one approach available to address
the concerns noted during the development of Framework 51 for discard
estimates.
As the Council's comment suggests, the assumption of ``adequate
observer coverage'' in order for the proposed measure to increase
precision of catch estimates is important. This measure has the
potential to increase the variance in discard estimates, which could
subsequently increase monitoring coverage levels necessary to
accurately monitor sector catches. Without appropriate monitoring
coverage, increased variability in discard estimates would affect our
ability to reliably monitor sector catches, meet the 30-percent
coefficient of variation standard specified in the Groundfish FMP, and
ensure that overfishing is not occurring. This is described in more
detail in the disapproval of this measure earlier in this preamble, and
is not restated here.
Although the Council correctly points out that the revised discard
strata could lead to different discard estimates for some sectors, it
does not acknowledge that the changes to the total discard estimates
would likely be small. This comment also does not acknowledge that the
revised discard strata would affect each sector's discard estimate for
GB yellowtail flounder differently. Discard estimates for some sectors
would have increased under the revised discard strata, and the
estimates for other sectors would have decreased. Thus, it is still
unclear whether there are any measurable benefits of this measure that
outweigh the potential disadvantages of this measure (i.e.,
administrative burden, potential to increase variance, etc.).
Comment 11: One commercial fishing organization commented that the
discard tool we developed would likely prove useful for sectors,
although this tool could be quite complicated for sectors to use. The
commenter noted that sector representatives would likely need
additional training on how to use the tool before it could be more
widely used.
Response: We agree that the discard tool will likely be useful for
sectors, particularly because of the wide range of potential uses that
allow a sector to assign discards to its member vessels in any number
of ways of its choosing based on the sector's own business model,
including applying the tool for all stocks, or just some stocks. The
development of this discard tool is described in detail earlier in the
preamble of this rule, and is not repeated here. We agree that, at
least initially, the discard tool may be complicated for sector
representatives to learn and use, particularly in learning all the
various combinations of criteria that can be applied to distribute
discards to member vessels. In addition, the application of this tool
will require sector members to become familiar with the tool, and the
sector will ultimately have to decide how best to distribute individual
discards based on the selected criteria. We will continue to work with
sector representatives to improve the utility of this discard tool, and
are already soliciting additional feedback from sectors on how we can
best provide additional support for this tool.
Prohibition on Possession of Yellowtail Flounder by the Limited Access
Scallop Fishery
Comment 12: The Council and one commercial fishing organization
supported the proposed prohibition on possession of yellowtail flounder
by limited access scallop vessels. Both commenters supported this
measure because it would remove any incentive for scallop vessels to
target yellowtail flounder, which would ultimately reduce bycatch of
yellowtail flounder in the scallop fishery, and reduce total mortality
on yellowtail flounder stocks.
Response: We acknowledge the commenters' support of the prohibition
on possession of yellowtail flounder by limited access scallop vessels.
As more fully described in Item 7 of this preamble, prohibiting
possession of yellowtail flounder would remove any incentive for
scallop vessels to target yellowtail flounder, and has the potential to
reduce total mortality for yellowtail flounder compared to the current
requirement to land all legal-sized yellowtail flounder. If discard
mortality is less than 100 percent for yellowtail flounder, then a
requirement to land all legal-sized yellowtail flounder could increase
mortality relative to a prohibition on possession. Based on the
available information, it is reasonable to expect that some fish from
these stocks, albeit a small number, may survive after being discarded,
thus
[[Page 22441]]
reducing total mortality on these stocks. Reducing total mortality,
even slightly, is particularly important for these yellowtail flounder
stocks. Although SNE/MA yellowtail flounder was declared rebuilt in
2012, CC/GOM and GB yellowtail flounder are overfished and overfishing
is occurring for both stocks. Thus, even though this measure appears to
increase bycatch, as defined by the Magnuson-Stevens Act, it is not
practicable to reduce bycatch because to do so would likely increase
overall mortality of yellowtail flounder. The conservation benefits of
further reducing mortality of yellowtail flounder outweigh the
potential for this measure to increase bycatch as defined by the
Magnuson-Stevens Act. As a result, we have determined that the
prohibition on possession adopted in this action is consistent with
National Standard 9, and other conservation requirements, of the
Magnuson-Stevens Act.
Comment 13: One NGO commented that it is puzzling that most of the
fleet is not abiding by the current landing requirement, and the
remaining portion of the fleet is targeting yellowtail flounder. The
commenter noted that mandatory ``move-on'' rules is the only clear
answer to possession rules for yellowtail flounder for the scallop
fishery.
Response: During development of Framework 51, we did note concerns
for the apparent low compliance rate by limited access scallop vessels
with the landing requirement. However, we repeatedly noted that low
compliance with any management measure was not an appropriate basis, by
itself, for eliminating a requirement. For this measure, we evaluated
how prohibiting possession would affect total mortality on the stock,
and as described in Item 7 of this preamble, determined that the
discard mortality rate for yellowtail flounder was likely less than 100
percent, at least for one stock of yellowtail flounder. Under this
assumption then, requiring limited access scallop vessels to discard
all yellowtail flounder is expected to decrease total mortality on
yellowtail flounder stocks compared to the landing requirement if even
a small number of fish survive. Further, because some scallop vessels
may be targeting yellowtail flounder, prohibiting possession provides
additional conservation benefits by removing any incentive for scallop
vessels to target yellowtail flounder. Ultimately, removing this
incentive is expected to further reduce overall fishing mortality on
yellowtail flounder in the scallop fishery.
The support for mandatory ``move-on'' rules does not directly
address the proposed measures, and is not an available substitute for
this action because we can only approve or disapprove the proposed
Framework 51 measures. However, to briefly respond to this comment, we
note that, although not mandatory, the scallop fishery does utilize a
yellowtail flounder avoidance program that incorporates real-time
information from scallop vessels to determine the location of
yellowtail flounder catch hotspots and better allows scallop vessels to
harvest their scallop allocations while minimizing yellowtail flounder
catch. This program was expanded beginning in FY 2013 to include
additional fishing areas on Georges Bank. If additional management
measures are needed in the future to better achieve conservation
objectives, the Council could consider ``move-on'' rules in a future
management action. However, the scallop fishery has successfully stayed
within its yellowtail flounder allocations under the existing
management system that combines established AMs that are triggered if
an overage occurs and a voluntary bycatch avoidance program.
FY 2014 Common Pool Trip Limits
Comment 14: One commercial fishing organization and one commercial
fisherman opposed zero possession of GOM haddock for the common pool
fishery for FY 2014. The commenters noted that a small trip limit
should be allowed so that common pool vessels can land a small amount
of haddock for home consumption.
Response: We agree with the commenter's suggestion that a small
trip limit should be allowed. As noted in Item 9 of this preamble, the
FY 2014 trip limit has been increased from what we initially proposed
(zero possession) to 25 lb (11.3 kg) per trip. This trip limit is
intended to allow vessels to land a small amount of haddock for
personal consumption, but remains low enough to reduce any incentive to
target GOM haddock. The FY 2013 common pool sub-ACL has been exceeded,
and this overage will be deducted from the FY 2014 common pool sub-ACL.
Since the common pool sub-ACL for GOM haddock is already small (2 mt),
when considering the FY 2013 overage, and the possibility of additional
overages in FY 2014, we have determined that it is not appropriate for
any directed fishing on GOM haddock by common pool vessels, and thus,
have kept the trip limit extremely low to prevent any directed fishing.
This is expected to preserve the common pool quota for GOM haddock for
the entire fishing year, and prevent prematurely shutting down the Gulf
of Maine area, which would have negative impacts on common pool
vessels, and prevent the common pool from harvesting its quota for
other stocks.
Comment 15: Two commercial fishermen opposed the SNE/MA winter
flounder trip limit of 1,000 lb (453.6 kg) per DAS up to 2,000 lb
(907.2 kg) per trip, and instead suggested the trip limit be slightly
higher to make trips for common pool vessels more profitable.
Response: We agree with the commenters' suggestion to increase the
trip limit. As noted in Item 9 of this preamble, the FY 2014 trip limit
has been increased from what we initially proposed to 1,500 lb (680.4
kg) per DAS up to 2,000 lb (1,360.8 kg) per trip. In addition to the
factors described earlier, we also took into account the southern
windowpane flounder AM that is triggered for FY 2014, which will
require the use of selective trawl gear in certain areas of Southern
New England for commercial groundfish trips. This AM will reduce
fishing opportunities for winter flounder, and as a result we
determined it was appropriate to increase the initial FY 2014 slightly
from what we proposed to help offset the impacts of the windowpane
flounder AM.
FY 2014 Windowpane Flounder Accountability Measures
Comment 16: The NGO noted that current catch estimates for FY 2013
indicate that the commercial groundfish fishery has exceeded its
allocation for both windowpane flounder stocks, and commented that it
was unclear whether there is any quota available to act as an AM for
the FY 2012 overages.
Response: As explained in detail in Item 8 of the preamble, the
commercial groundfish fishery AMs for both stocks of windowpane
flounder are gear-restricted areas that are triggered if the overall
catch limit is exceeded. These stocks are not allocated to sectors, and
possession is prohibited. As a result, area-based AMs, instead of
pound-for-pound ``payback'' AMs, were adopted to mitigate overages of
the windowpane flounder catch limit, and prevent future overages from
occurring, by requiring selective trawl gear for commercial groundfish
vessels in order to reduce catches of windowpane flounder.
Due to data availability, we typically cannot determine whether the
overall catch limit has been exceeded until after the fishing year ends
when updated discard information for the sub-components of the fishery
(e.g., state waters and non-groundfish fisheries) becomes available. As
a result,
[[Page 22442]]
implementation of the windowpane flounder AMs can be delayed up to 2
years following an overage, which is the case of the FY 2012 overages
that will result in an AM for FY 2014. In some circumstances, however,
we could have reliable information inseason that shows a pertinent
catch limit has been exceeded, and in those cases, we would trigger the
windowpane flounder AMs the year immediately following an overage. For
example, preliminary catch estimates for FY 2013 indicate the total
catch limit for northern windowpane has been exceeded. Thus, regardless
of whether an overage occurred in FY 2012 for this stock, we would have
implemented the AM for northern windowpane at the start of the 2014
fishing year due to the overage of the FY 2013 catch limit.
To clarify the commenter's reference to the preliminary FY 2013
catch information, it is important to reiterate that the commercial
groundfish AMs are only triggered if the overall catch limit is
exceeded. An overage of the groundfish fishery's allocation does not
dictate that an AM be implemented. For northern windowpane, this issue
is moot because, as noted earlier, current FY 2013 catch estimates for
the commercial groundfish fishery indicate the commercial fleet, alone,
has caught more than the FY 2013 OFL. However, for southern windowpane
flounder, although the commercial groundfish allocation has been
exceeded, it may be unlikely that the overall catch limit is exceeded
for FY 2013. Preliminary FY 2013 catch information for the scallop
fishery indicates that the scallop fishery only caught approximately 60
percent of its allocation for southern windowpane (approximately an 80-
mt underharvest). There is a possibility that this underage of the
scallop fishery allocation helps prevent the overall catch limit from
being exceeded in FY 2013 and, if so, no AMs would be necessary to
address FY 2013 catches.
Changes From the Proposed Rule
We made four changes from the proposed rule in this action. First,
this final rule disapproves the revised discard strata for GB
yellowtail flounder, for reasons already described in detail in both
the Disapproved Measures and the Comments and Responses sections of
this preamble. These reasons are not restated here. Second, this final
rule partially disapproves the rebuilding plan review analysis in order
to remove irrelevant criteria, as well as the regulatory provisions
related to this part of the analysis. The reasons for this partial
disapproval are described in detail in Item 1 of this preamble and in
the Comments and Responses section of this preamble. We also revised
the GOM haddock and SNE/MA winter flounder trip limits for the common
pool fishery based on comments received on the proposed trip limits,
and these adjustments are explained in Item 9 of this preamble and in
the Comments and Responses section of this preamble.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that the management
measures implemented in this final rule are necessary for the
conservation and management of the Northeast groundfish fishery and
consistent with the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order (E.O.) 12866.
This final rule does not contain policies with Federalism or
``takings'' implications as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
The Assistant Administrator for Fisheries finds good cause, under
authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delayed
effectiveness of this action. The effective date of this action affects
a parallel rulemaking approving sector operations plans for the start
of FY 2014 on May 1, 2014. In addition, this action sets FY 2014 catch
limits for white hake and U.S./Canada stocks, adjusts management
measures for yellowtail flounder, and improves measures that will
increase fishing opportunities for sector vessels. Therefore, these
measures must be in effect at the beginning of FY 2014 to fully capture
the conservation and economic benefits of Framework 51 measures and the
FY 2014 sector operations plans. Due to the government shutdown in
October 2013, the Council could not take final action on Framework 51
until December 2013, and as a result, the Council's submission of
Framework 51 to NMFS was delayed until February 2014. Due to this time
constraint, this rulemaking could not be completed further in advance
of May 1, 2014. Therefore, in order to have this action effective at
the beginning of FY 2014, which begins on May 1, 2014, it is necessary
to waive the 30-day delayed effectiveness of this rule.
Failure to waive the 30-day delayed effectiveness would result in
no catch limits being specified for FY 2014 for a number of groundfish
stocks. Without an allocation for these groundfish stocks, sector
vessels would be unable to fish beginning on May 1, 2014. This would
severely disrupt the fishery, and could result in foregone yield and
revenue reductions. The groundfish fishery already faced substantial
cuts in the catch limits for many key groundfish stocks beginning in FY
2013, and any further disruption to the fishery could worsen the severe
economic impacts that resulted from the FY 2013 catch limits. This
action includes specifications that would increase the catch limits for
white hake and the U.S. quota for the three shared U.S./Canada stocks,
and also adopts other measures designed to increase fishing
opportunities for sector vessels. These measures are intended to
continue to help mitigate the economic impacts of the reductions in the
FY 2013 catch limits. A delay in implementation of this action would
greatly diminish the benefits of these specifications and other
approved measures. For these reasons, a 30-day delay in the
effectiveness of this rule is impracticable and contrary to the public
interest.
Final Regulatory Flexibility Analysis
Introduction
The Regulatory Flexibility Act (RFA) requires that Federal agencies
analyze the expected impacts of a rule on small business entities,
including consideration of disproportionate and/or significant adverse
economic impacts on small entities that are directly regulated by the
action. As part of the analysis, Federal agencies must also consider
alternatives that minimize impacts on small entities while still
accomplishing the objectives of the rule. However, it is important to
note that the RFA does not require that the alternative with the least
cost, or with the least impact on small entities, be selected. Rather,
the required analysis is used to inform the agency, as well as the
public, of the expected impacts of the various alternatives included in
the rule, and to ensure the agency considers other alternatives that
minimize the expected impacts while still meeting the goals and
objectives of the action, and that are still consistent with applicable
law. In addition, our ability to minimize economic impacts is
constrained, in part, by recommendations of the Council. We can only
approve, partially approve, or disapprove the measures that the Council
recommends in a management action.
Section 604 of the RFA, 5 U.S.C. 604, requires Federal agencies to
prepare a Final Regulatory Flexibility Analysis (FRFA) for each final
rule. Key elements
[[Page 22443]]
of the FRFA include a summary of significant issues raised by public
comments, a description of the small entities that will be affected by
the final rule, and a description of the steps the agency has taken to
minimize the significant economic impact on small entities that
includes the reasons for selecting each alternative and why other
alternatives were not adopted. The FRFA prepared for this final rule
includes the summary and responses to comments in this rule, the
analyses contained in Framework 51 and its accompanying Environmental
Assessment/Regulatory Impact Review/Initial Regulatory Flexibility
Analysis (IRFA), the IRFA summary in the proposed rule, as well as the
summary provided below.
Statement of Objective and Need
A description of the action, why it is being considered, and the
legal basis for this action are contained in Framework 51, the preamble
to the proposed rule, as well as this final rule, and are not repeated
here. A copy of the full analysis is available from NMFS (see
ADDRESSES).
Summary of Significant Issues Raised in Public Comments
Our responses to all comments received on the proposed rule can be
found in the Comments and Responses section of this preamble. No public
comments were received on the economic impacts of this action, or the
IRFA prepared for the proposed rule.
As a result of the public comment received, we disapproved the
revised discard strata for GB yellowtail flounder, and only partially
approved the GOM cod and plaice rebuilding plan review analysis in
order to remove irrelevant criteria. We also revised the GOM haddock
and SNE/MA winter flounder trip limits for the common pool fishery
based on comments received on the proposed trip limits. No other
changes to the proposed rule measures were required to be made as a
result of public comments.
Description and Estimate of the Number of Small Entities to Which the
Final Rule Will Apply
The Small Business Administration defines a small business as one
that is:
Independently owned and operated;
Not dominant in its field of operation;
Has annual receipts that do not exceed--
[cir] $19.0 million in the case of commercial finfish harvesting
entities (NAIC \1\ 114111)
---------------------------------------------------------------------------
\1\ The North American Industry Classification System (NAICS) is
the standard used by Federal statistical agencies in classifying
business establishments for the purpose of collecting, analyzing,
and publishing statistical data related to the U.S. business
economy.
---------------------------------------------------------------------------
[cir] $5.0 million in the case of commercial shellfish harvesting
entities (NAIC 114112)
[cir] $7.0 million in the case of for-hire fishing entities (NAIC
114119); or
Has fewer than--
[cir] 500 employees in the case of fish processors
[cir] 100 employees in the case of fish dealers.
This action impacts commercial and recreational fish harvesting
entities that participate in the groundfish limited access and open
access fisheries, the small-mesh multispecies and squid fisheries, and
the scallop fishery. A description of the specific permits that are
likely to be impacted is included below for informational purposes,
followed by a discussion of the impacted businesses (ownership
entities), which can include multiple vessels and/or permit types.
Limited Access Groundfish Fishery--The limited access groundfish
fishery consists of those enrolled in the sector program and the common
pool fishery. As of January 14, 2014, there were 1,088 individual
limited access permits for FY 2013. Limited access groundfish
eligibilities held as Confirmation of Permit History were not included
for the purposes of this analysis. Although these entities may generate
revenue from quota leasing, they do not generate any gross sales from
fishing activity and, as a result, are not classified as commercial
fishing entities. Of the 1,088 limited access groundfish permits issued
in FY 2013, 664 of these permits were enrolled in the sector program,
and 424 were in the common pool. Based on the information to date, 767
of these limited access groundfish permits have associated landings of
any species, and 414 have some amount of groundfish landings. Each of
these 1,088 permits will be eligible to join a sector or enroll in the
common pool in FY 2014. There is also a possibility that some of these
permit owners could allow their permit to expire by failing to renew it
for FY 2014.
Handgear B Fishery--The Handgear B permit is an open access
groundfish permit that can be requested at any time, with the
limitation that a vessel cannot hold a limited access groundfish permit
and an open access Handgear B permit concurrently. The Handgear B
permit requires the use of rod-and-reel handgear, and is also subject
to possession limits for groundfish species, with special provisions
for cod. As of February 18, 2014, there were 891 Handgear B permits,
and 78 of those vessels landed at least 1 lb (0.45 kg) of groundfish
for FY 2014.
Charter/Party Fishery--The charter/party permit is an open access
groundfish permit that can be requested at any time, with the
limitation that a vessel cannot hold a limited access groundfish permit
and an open access party/charter permit concurrently. Charter/party
permits are subject to annual recreational management measures that
include minimum fish sizes, possession limits, and seasonal closures.
As of February 20, 2014, there were 667 party/charter permits issued
for FY 2013. Of these permits issued for FY 2013, 383 vessels reported
taking a party or charter trip, and 120 of these vessels have caught
cod or haddock in the Gulf of Maine during FY 2013.
Limited Access Scallop Fisheries--The limited access scallop
fishery includes Limited Access (LA) scallop permits and Limited Access
General Category (LGC) scallop permits. LA scallop businesses are
subject to a mixture of DAS and an access area rotation program. LGC
scallop businesses are managed primarily under an individual fishing
quota system, and vessels are able to acquire and lease additional
scallop quota throughout the year. As of February 19, 2014, there were
348 active LA scallop permits with at least one dollar of revenue from
sea scallops for FY 2013.
Small-Mesh Fisheries--The small-mesh exempted fishery allows
vessels to harvest species in designated areas using mesh sizes smaller
than the minimum mesh size required by the Groundfish FMP. To
participate in the small-mesh multispecies (whiting) fishery, vessels
must hold either a limited access groundfish permit or an open access
Category K groundfish permit. Limited access groundfish permit holders
can only target whiting while declared out of the fishery (i.e., not
fishing under a DAS or sector trip). A description of limited access
groundfish permits was provided above, and is not repeated here. As of
February 18, 2014, there were 776 open access Category K groundfish
permits issued, with only 34 of them landing at least 1 lb (0.45 kg) of
whiting. Many of these vessels target both whiting and Longfin squid on
small-mesh trips taken in the GB yellowtail flounder stock area, and
therefore, most of them also have open access or limited access Squid,
Mackerel, and Butterfish (SMB) permits.
[[Page 22444]]
During calendar years 2010-2011, nearly half of the total whiting
landings came from the GB yellowtail flounder stock area, but during
the same time period, the squid landings from this area made up less
than 10 percent of the total squid landings. As a result, and because
most SMB-permitted vessels fishing in the GB yellowtail flounder stock
area also have either a limited access or open access Category K
groundfish permit, SMB permits were not incorporated into this
analysis.
Ownership Entities--For the purposes of this analysis, an
``ownership entity'' is defined as an entity with common owners as
listed on the permit application. Only permits with identical ownership
are categorized as an ``ownership entity.'' For example, if five
permits have the same seven persons listed as co-owners on their permit
application, those seven persons would form one ``ownership entity.''
If two of those seven owners also co-own additional vessels, that
ownership arrangement would be considered a separate ``ownership
entity'' for the purpose of this analysis. The ownership entities, and
not the individual vessels, are considered to be the entities regulated
by this action.
On June 1 of each year, ownership entities are identified based on
a list of all permits for the most recent complete calendar year. The
current ownership data set is based on calendar year 2012 permits and
contains average gross sales associated with those permits for calendar
years 2010 through 2012. Matching the potentially-impacted FY 2013
permits described above to the calendar year 2012 ownership data
results in 2,064 distinct ownership entities. Based on the Small
Business Administration guidelines, 2,042 of these ownership entities
are categorized as small, and 22 are categorized as large entities, all
of which are shellfish businesses.
These totals may mask some diversity among the entities. Most of
these ownership entities maintain diversified harvest portfolios,
obtaining gross sales from many fisheries, and not dependent on any one
fishery. However, not all ownership entities are equally diversified.
The entities that depend most heavily on sales from harvesting species
that are directly impacted by this action are most likely to be
affected. To identify these ownership groups, dependence was defined as
having sales of species from a specific fishery (e.g., groundfish or
scallops) that were more than 50 percent of the ownership group's total
gross sales.
Using this threshold, 151 entities are groundfish-dependent, all of
which are considered small, and all of which are finfish commercial
harvesting businesses. Of the 151 groundfish-dependent entities, 130
participate in the sector program, and 21 operate exclusively in the
common pool fishery. There are 234 entities that are scallop-dependent.
All of these scallop-dependent entities are shellfish businesses, and
20 of them are considered large. There are 35 small-mesh fishery-
dependent entities; all of which are considered small. Of these small-
mesh dependent entities, 19 are finfish businesses, and 16 are
shellfish businesses. The small-mesh fishery-dependent entities may
overestimate the number of impacted entities because missing
statistical area information in the commercial dealer database makes it
difficult to track whiting and squid landings that occurred exclusively
in the GB yellowtail flounder stock area.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements
This final rule contains a revision to the collection-of-
information requirement subject to review and approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act, and
which has been approved by OMB under control number 0648-0605
(Amendment 16 reporting requirements).
This action adjusts the Annual Catch Entitlement (ACE) transfer
request requirement implemented through Amendment 16 by adding a new
entry field to the ACE transfer request form. This new entry field
allows a sector to indicate how many pounds of eastern GB haddock ACE
it intends to re-allocate to the Western U.S./Canada Area. The change
is necessary so that a sector can apply for a re-allocation of eastern
GB ACE in order to increase fishing opportunities in the Western U.S./
Canada Area. Currently, all sectors use the ACE transfer request form
to initiate ACE transfers with other sectors via an online or paper
form to the Regional Administrator. The change would not affect the
number of entities required to comply with this requirement. Therefore,
this change is not expected to increase the time or cost burden
associated with the ACE transfer request requirement. Public reporting
burden for this requirement includes the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act, unless that collection of
information displays a currently valid OMB Control Number.
Description of the Steps Taken to Minimize Significant Economic Impacts
of this Action
We are disapproving the proposed revision to the method for
estimating discards of GB yellowtail flounder, and partially
disapproving the proposed rebuilding plan review analysis for GOM cod
and American plaice. The rationale for disapproving these measures
adopted by the Council in Framework 51 is explained in detail in the
preamble of this rule, and is not repeated here. We have determined
that all of the other measures proposed in Framework 51 are consistent
with the requirements of the Magnuson-Stevens Act and other applicable
law, as well as the goals and objectives of the Groundfish FMP. As a
result, we are approving these measures in this final rule. Many of
these measures were developed in order to provide sectors with
additional fishing opportunities and more flexibility to harvest their
available allocations. These measures are expected to minimize economic
impacts to small entities compared to the No Action alternatives. Other
measures adopted in this final rule that may have some negative impacts
to small entities were determined to be less burdensome compared to
other alternatives that were considered in Framework 51, but ultimately
not recommended by the Council.
Two factors were examined to determine whether this action could
result in significant economic impacts: Disproportionality and
profitability. Disproportionality refers to whether or not the
regulations place a substantial number of small entities at a
significant competitive disadvantage to large entities. Profitability
refers to whether or not the regulations significantly reduce profits
for a substantial number of small entities. This action has the
potential to place small entities at a significant competitive
disadvantage compared to large entities. This is mainly because large
entities will likely have more flexibility to adjust to, and
accommodate, the final measures. In addition, this action may have
significant impacts on profitability for a substantial number of small
entities, as described below.
The 10-year rebuilding programs for GOM cod and plaice that are
adopted in this action are expected to have positive impacts on
profitability of the small
[[Page 22445]]
entities that are regulated by this action that would result from
rebuilt stocks. In addition, these rebuilding programs are expected to
result in higher net present values and larger profits compared to the
alternatives to the preferred alternative (No Action alternative, an 8-
year rebuilding program for GOM cod, and a 7 and 8-year rebuilding
program for plaice). Because these stocks were not making adequate
rebuilding progress, the revised rebuilding programs adopted in this
action are necessary to ensure conservation objectives are met, and
that management measures are consistent with the rebuilding
requirements of the Magnuson-Stevens Act. The alternatives to the 10-
year rebuilding programs for both stocks were not selected because they
would not have sufficiently accounted for the needs of fishing
communities, past performance of groundfish rebuilding, and differences
in the two assessment models used for GOM cod.
The catch limits implemented in this final rule are predicted to
decrease gross revenues for the groundfish industry by 4 percent in FY
2014 compared to FY 2013 and by 26 percent compared to FY 2012. Net
revenue is predicted to decline in FY 2014 by 12 percent compared to
predicted net revenues, and by 21 percent compared to FY 2012. The
negative impacts of the final catch limits would be non-uniformly
distributed across vessel size classes, with smaller vessels being more
heavily impacted compared to large vessels. Although small entities are
defined based on gross sales of ownership groups, not physical
characteristics of the vessel, it is reasonable to assume that larger
vessels are more likely to be owned by large entities. As a result, the
catch limits included in this action could put small entities at a
competitive disadvantage compared to large entities.
The only alternative to the catch limits implemented by this rule
is the No Action alternative. If no action was taken, no catch limits
would be specified for the U.S./Canada stocks or white hake. As a
result, sector vessels would be unable to fish in the respective stock
areas in FY 2014. This would result in greater negative economic
impacts on vessels compared to the specifications implemented by this
action due to lost revenues as a result of being unable to fish. If no
action was taken to specify catch limits for these stocks, the
Magnuson-Stevens Act requirements to achieve optimum yield, take into
account the needs of fishing communities, and minimize adverse economic
impacts would also be violated. For these reasons, the No Action
alternative was not selected.
The catch limits implemented by this action are based on the latest
stock assessment information, which is considered the best scientific
information available, and the applicable requirements in the
Groundfish FMP and the Magnuson-Stevens Act. The catch limits
implemented in this action are the highest allowed given the best
scientific information available, the SSC's recommendations, and
requirements to end overfishing and rebuild fish stocks. The only other
options to the catch limits implemented in this action that would
mitigate negative impacts would be higher catch limits. However, higher
catch limits to those adopted in this action are not permissible under
the law because they would not be consistent with the goals and
objectives of the Groundfish FMP, or the Magnuson-Stevens Act,
particularly the requirement to prevent overfishing. The Magnuson-
Stevens Act, and relevant case law, prevents implementation of measures
that conflict with conservation requirements, even if it means negative
impacts are not mitigated. For these reasons, higher catch limits than
those implemented in this action were not considered in Framework 51.
As a result, the only other alternative to the catch limits implemented
in this action was the No Action Alternative, which would not mitigate
the economic impacts of the final catch limits, as explained above.
The GB yellowtail flounder AM established for the small-mesh
fisheries that is adopted in this action is expected to have negative
impacts on small-mesh fishery-dependent small entities, if the AM is
triggered. However, this type of measure is required by the Magnuson-
Stevens Act to help prevent overfishing, and to ensure that small-mesh
fisheries catch of GB yellowtail flounder does not negatively affect
the groundfish and scallop fisheries. If the small-mesh fisheries sub-
ACL for GB yellowtail flounder is exceeded, selective trawl gear would
be required in the year immediately following the overage, or 2 years
after the overage, depending on data availability. Small entities would
likely experience higher costs as a result, including the fixed cost of
purchasing new gear and/or modifying existing gear. These potential
gear restrictions would also likely lower the catch rates of target
species (e.g., squid and whiting), which would increase operating costs
and lower net revenue and overall profitability. The negative impacts
this action could have are less than those that would have resulted
from another alternative considered in Framework 51 that would have
closed the entire GB yellowtail flounder stock area to small-mesh
fisheries if the sub-ACL was exceeded. If the AM implemented in this
rule successfully reduces discards of GB yellowtail flounder, and
prevents overfishing, catch rates for the species could increase for
groundfish-dependent small entities, resulting in small increases in
profitability.
This action also adopts two measures that would modify U.S./Canada
management measures to provide more flexibility and create additional
fishing opportunities for groundfish vessels. For each of these
measures, no other alternatives were considered other than the No
Action alternative and the measures implemented in this action. The
first measure establishes a U.S./Canada quota trading mechanism. This
is an administrative measure, and is not expected to have any
additional economic impacts, positive or negative, relative to the No
Action alternative, which would not have specified any U.S./Canada
trading mechanism. At this time, it is not known how this action might
increase or decrease quota allocated to groundfish fishermen because it
is difficult to anticipate what, if any, trade would be made between
the United States and Canada. However, if the ability to trade quota
inseason were to result in increased quota for U.S. vessels, and that
quota was converted into landings, then this action would be beneficial
to groundfish-dependent small entities. In addition, because this
trading mechanism would likely allow the United States to receive
additional quota for limiting stocks, any trade made would better help
achieve optimum yield in the fishery. Compared to the No Action
alternative, the preferred alternative may result in potential benefits
to groundfish-dependent small entities and would likely allow the
United States to receive additional quota for limiting stocks, and for
these reasons, the No Action alternative was rejected.
The second measure allows sectors to convert their eastern GB
haddock allocation to western GB haddock allocation and provide
additional opportunities to harvest more of their total GB haddock
allocation. This is expected to have small positive impacts on
groundfish-dependent small entities that participate in the sector
program due to increased operational flexibility. This measure is also
expected to prevent the Western U.S./Canada Area from being closed to a
sector prematurely, before the sector harvests all of its GB haddock
allocation, which will
[[Page 22446]]
ultimately prevent foregone yield in the fishery. However, since catch
of eastern and western GB haddock has been consistently lower than the
respective catch limits, the benefit of this action is likely very
small compared to the No Action alternative. Due to the small benefits
that may be realized under the preferred alternative when compared to
the No Action alternative, the No Action alternative was rejected.
This action also adopts a prohibition on possession of yellowtail
flounder by limited access scallop vessels, which is expected to impact
only scallop-dependent small entities. This measure could result in
some economic loss for vessels that have been landing the species.
However, only a relatively small proportion (less than a quarter) of
the active limited access vessels are currently landing yellowtail
flounder, and the average revenue per vessel from yellowtail flounder
is less than 5 percent of the average total revenue. As such, the
effects of this action on the profitability of scallop-dependent small
entities are expected to be small. Further, this action is required to
reduce total mortality on yellowtail flounder in order to better meet
the goals and objectives of the Groundfish FMP. The only alternative
considered to the preferred alternative was No Action. Compared to the
preferred alternative, the No Action alternative may increase revenues
for vessels that have been landing yellowtail flounder. However, the No
Action alternative was not selected because the conservation benefits
of reducing mortality on yellowtail flounder outweighed any minor
economic benefit that some vessels could obtain by landing small
amounts of yellowtail flounder.
The actions analyzed here must also be put into the context of
previous actions, such as Amendment 16 to the Groundfish FMP, and
parallel actions, such as the approval of FY 2014 sector operations
plans, which contain ongoing measures to help mitigate negative impacts
on the entities affected by this action.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, we will send a small entity compliance guide
to all Federal permit holders affected by this action (groundfish,
scallop, and small-mesh). In addition, copies of this final rule and
guide (i.e., information bulletin) are available from NMFS (see
ADDRESSES) and at the following Web site: http://www.nero.noaa.gov/sfd/sfdmulti.html.
List of Subjects
50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
50 CFR Part 697
Fisheries, Fishing.
Dated: April 17, 2014.
Paul N. Doremus,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR parts 648 and 697
are amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.14, revise paragraph (i)(2)(iii)(D) to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(i) * * *
(2) * * *
(iii) * * *
(D) Fish for, possess, or land yellowtail flounder from a vessel on
a scallop fishing trip.
* * * * *
0
3. In Sec. 648.60, revise paragraph (a)(5)(ii)(C) to read as follows:
Sec. 648.60 Sea scallop access area program requirements.
(a) * * *
(5) * * *
(ii) * * *
(C) Yellowtail flounder. Such vessel is prohibited from fishing
for, possessing, or landing yellowtail flounder.
* * * * *
0
4. In Sec. 648.80, revise paragraph (g)(5)(i) to read as follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on
gear and methods of fishing.
* * * * *
(g) * * *
(5) * * *
(i) Nets of mesh size less than 2.5 inches (6.4 cm). A vessel
lawfully fishing for small-mesh multispecies in the GOM/GB, SNE, or MA
Regulated Mesh Areas, as defined in paragraphs (a), (b), and (c) of
this section, with nets of mesh size smaller than 2.5 inches (6.4-cm),
as measured by methods specified in paragraph (f) of this section, may
use net strengtheners (covers, as described at Sec. 648.23(d)),
provided that the net strengthener for nets of mesh size smaller than
2.5 inches (6.4 cm) complies with the provisions specified under Sec.
648.23(c).
* * * * *
0
5. In Sec. 648.85, revise paragraphs (a)(2)(ii) and (b)(6)(iv)(B) and
add paragraph (a)(2)(iv) to read as follows:
Sec. 648.85 Special management programs.
(a) * * *
(2) * * *
(ii) TAC Overages. Any overages of the overall Eastern GB cod,
Eastern GB haddock, and GB yellowtail flounder U.S. TACs caused by an
overage of the component of the U.S. TAC specified for either the
common pool, individual sectors, the scallop fishery, or any other
fishery, pursuant to this paragraph (a)(2) and Sec. 648.90(a)(4), that
occur in a given fishing year shall be subtracted from the respective
TAC component responsible for the overage in the following fishing year
and may be subject to the overall groundfish AM provisions as specified
in Sec. 648.90(a)(5)(ii) if the overall ACL for a particular stock in
a given fishing year, specified pursuant to Sec. 648.90(a)(4), is
exceeded.
* * * * *
(iv) Inseason TAC Adjustments. For FY 2014 only, the Regional
Administrator, in consultation with the Council, may adjust the FY 2014
TACs for the U.S./Canada shared resources inseason consistent with any
quota trade recommendations made by the TMGC and/or Steering Committee,
and approved by the Regional Administrator. Any such inseason
adjustment to the FY 2014 TACs may only increase the TAC available to
the U.S. fishery, and may not reduce the TAC amount distributed in FY
2014 to any fishery component as specified in paragraph (a)(2)(iii) of
this section. The revised FY 2014 TAC(s) shall be distributed
consistent with the process specified in paragraph (a)(2)(iii) of this
section. For example, if the U.S. receives additional yellowtail
flounder TAC in FY 2014, and trades away a portion of its FY 2015
haddock TAC, the Regional Administrator would increase the FY 2014 U.S.
TAC for yellowtail flounder inseason consistent with the process
specified in this paragraph (a)(2)(iv). The adjustment to the FY 2015
[[Page 22447]]
U.S. TAC for haddock would be made as part of the process for
establishing TACs, as described in paragraph (a)(2)(i)(C) of this
section.
* * * * *
(b) * * *
(6) * * *
(iv) * * *
(B) Observer notification. For the purposes of selecting vessels
for observer deployment, a vessel must provide notice to NMFS of the
vessel name; contact name for coordination of observer deployment;
telephone number for contact; the date, time, and port of departure;
and the planned fishing area or areas (GOM, GB, or SNE/MA) at least 48
hr prior to the beginning of any trip declared into the Regular B DAS
Program as required by paragraph (b)(6)(iv)(C) of this section, and in
accordance with the Regional Administrator's instructions. Providing
notice of the area that the vessel intends to fish does not restrict
the vessel's activity on that trip to that area only (i.e., the vessel
operator may change his/her plans regarding planned fishing areas).
* * * * *
0
6. In Sec. 648.87:
0
a. Revise paragraph (b)(1)(i)(B) and the introductory text of paragraph
(c)(2);
0
b. Add paragraph (e)(3)(iv); and
0
c. Remove paragraphs (b)(1)(i)(F) through (G) to read as follows:
Sec. 648.87 Sector allocation.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) Eastern GB stocks--(1) Allocation. Each sector allocated ACE
for stocks managed under the terms of the U.S./Canada Resource Sharing
Understanding in the Eastern U.S./Canada Area, as specified in Sec.
648.85(a), shall be allocated a specific portion of the ACE for such
stocks that can only be harvested from the Eastern U.S./Canada Area, as
specified in Sec. 648.85(a)(1). The ACE specified for the Eastern
U.S./Canada Area portions of these stocks shall be proportional to the
sector's allocation of the overall ACL available to all vessels issued
a limited access NE multispecies permit for these stocks pursuant to
Sec. 648.90(a)(4). For example, if a sector is allocated 10 percent of
the GB cod ACL available to all vessels issued a limited access NE
multispecies permit, that sector would also be allocated and may
harvest 10 percent of that ACE from the Eastern U.S./Canada Area. In
this example, if the overall GB cod ACL available to all vessels issued
a limited access NE multispecies permit is 1,000 mt, of which 100 mt is
specified to the Eastern U.S./Canada Area, the sector would be
allocated 100 mt of GB cod, of which no more than 10 mt could be
harvested from the Eastern U.S./Canada Area and no more than 90 mt
could be harvested from the rest of the GB cod stock area.
(2) Re-allocation of haddock ACE. A sector may re-allocate all, or
a portion, of a its haddock ACE specified to the Eastern U.S./Canada
Area, pursuant to paragraph (b)(1)(i)(B)(1) of this section, to the
Western U.S./Canada Area at any time during the fishing year, and up to
2 weeks into the following fishing year (i.e., through May 14), unless
otherwise instructed by NMFS, to cover any overages during the previous
fishing year. Re-allocation of any ACE only becomes effective upon
approval by NMFS, as specified in paragraphs (b)(1)(i)(B)(2)(i) through
(iii) of this section. Re-allocation of haddock ACE may only be made
within a sector, and not between sectors. For example, if 100 mt of a
sector's GB haddock ACE is specified to the Eastern U.S./Canada Area,
the sector could re-allocate up to 100 mt of that ACE to the Western
U.S./Canada Area.
(i) Application to re-allocate ACE. GB haddock ACE specified to the
Eastern U.S./Canada Area may be re-allocated to the Western U.S./Canada
Area through written request to the Regional Administrator. This
request must include the name of the sector, the amount of ACE to be
re-allocated, and the fishing year in which the ACE re-allocation
applies, as instructed by the Regional Administrator.
(ii) Approval of request to re-allocate ACE. NMFS shall approve or
disapprove a request to re-allocate GB haddock ACE provided the sector,
and its participating vessels, is in compliance with the reporting
requirements specified in this part. The Regional Administrator shall
inform the sector in writing, within 2 weeks of the receipt of the
sector's request, whether the request to re-allocate ACE has been
approved.
(iii) Duration of ACE re-allocation. GB haddock ACE that has been
re-allocated to the Western U.S./Canada Area pursuant to this paragraph
(b)(1)(i)(B)(2) is only valid for the fishing year in which the re-
allocation is approved, with the exception of any requests that are
submitted up to 2 weeks into the subsequent fishing year to address any
potential ACE overages from the previous fishing year, as provided in
paragraph (b)(1)(iii) of this section, unless otherwise instructed by
NMFS.
* * * * *
(c) * * *
(2) If a sector is approved, the Regional Administrator shall issue
a letter of authorization to each vessel operator and/or vessel owner
participating in the sector. The letter of authorization shall
authorize participation in the sector operations and may exempt
participating vessels from any Federal fishing regulation implementing
the NE multispecies FMP, except those specified in paragraphs (c)(2)(i)
and (ii) of this section, in order to allow vessels to fish in
accordance with an approved operations plan, provided such exemptions
are consistent with the goals and objectives of the FMP. The letter of
authorization may also include requirements and conditions deemed
necessary to ensure effective administration of, and compliance with,
the operations plan and the sector allocation. Solicitation of public
comment on, and NMFS final determination on such exemptions shall be
consistent with paragraphs (c)(1) and (2) of this section.
* * * * *
(e) * * *
(3) * * *
(iv) Re-allocation of GB haddock ACE. Subject to the terms and
conditions of the state-operated permit bank's MOAs with NMFS, a state-
operated permit bank may re-allocate all, or a portion, of its GB
haddock ACE specified for the Eastern U.S./Canada Area to the Western
U.S./Canada Area provided it complies with the requirements in
paragraph (b)(1)(i)(B)(2) of this section.
* * * * *
0
7. In Sec. 648.90:
0
a. Revise paragraphs (a)(2)(iv) through (vii) and (a)(4)(iii)(G); and
0
b. Add paragraphs (a)(2)(viii), (a)(4)(i)(A) and (B), (a)(5)(iv), and
(a)(5)(v) to read as follows:
Sec. 648.90 NE multispecies assessment, framework procedures and
specifications, and flexible area action system.
* * * * *
(a) * * *
(2) * * *
(iv) Rebuilding plan review for GOM cod and American plaice. Based
on this review of the most current scientific information available,
the PDT shall determine whether the following conditions are met for
either stock: The total catch limit has not been exceeded during the
rebuilding program; new scientific information indicates that the stock
is below its rebuilding trajectory (i.e., rebuilding has not progressed
as expected); and Frebuild becomes less than 75%
FMSY. If all three of these criteria are met, the PDT, and/
or SSC, shall undertake a rebuilding plan review to
[[Page 22448]]
provide new catch advice that includes the following, in priority
order: Review of the biomass reference points and calculation of
Frebuild ACLs based on the review of the biomass reference
points and the existing rebuilding plan.
(v) The Council shall review the ACLs recommended by the PDT and
all of the options developed by the PDT and other relevant information;
consider public comment; and develop a recommendation to meet the FMP
objectives pertaining to regulated species or ocean pout that is
consistent with applicable law. If the Council does not submit a
recommendation that meets the FMP objectives and is consistent with
applicable law, the Regional Administrator may adopt any option
developed by the PDT, unless rejected by the Council, as specified in
paragraph (a)(2)(vii) of this section, provided the option meets the
FMP objectives and is consistent with applicable law.
(vi) Based on this review, the Council shall submit a
recommendation to the Regional Administrator of any changes,
adjustments or additions to DAS allocations, closed areas or other
measures necessary to achieve the FMP's goals and objectives. The
Council shall include in its recommendation supporting documents, as
appropriate, concerning the environmental and economic impacts of the
proposed action and the other options considered by the Council.
(vii) If the Council submits, on or before December 1, a
recommendation to the Regional Administrator after one Council meeting,
and the Regional Administrator concurs with the recommendation, the
Regional Administrator shall publish the Council's recommendation in
the Federal Register as a proposed rule with a 30-day public comment
period. The Council may instead submit its recommendation on or before
February 1, if it chooses to follow the framework process outlined in
paragraph (c) of this section, and requests that the Regional
Administrator publish the recommendation as a final rule, in a manner
consistent with the Administrative Procedure Act. If the Regional
Administrator concurs that the Council's recommendation meets the FMP
objectives and is consistent with other applicable law, and determines
that the recommended management measures should be published as a final
rule, the action will be published as a final rule in the Federal
Register, in a manner consistent with the Administrative Procedure Act.
If the Regional Administrator concurs that the recommendation meets the
FMP objectives and is consistent with other applicable law and
determines that a proposed rule is warranted, and, as a result, the
effective date of a final rule falls after the start of the fishing
year on May 1, fishing may continue. However, DAS used or regulated
species or ocean pout landed by a vessel on or after May 1 will be
counted against any DAS or sector ACE allocation the vessel or sector
ultimately receives for that year, as appropriate.
(viii) If the Regional Administrator concurs in the Council's
recommendation, a final rule shall be published in the Federal Register
on or about April 1 of each year, with the exception noted in paragraph
(a)(2)(vi) of this section. If the Council fails to submit a
recommendation to the Regional Administrator by February 1 that meets
the FMP goals and objectives, the Regional Administrator may publish as
a proposed rule one of the options reviewed and not rejected by the
Council, provided that the option meets the FMP objectives and is
consistent with other applicable law. If, after considering public
comment, the Regional Administrator decides to approve the option
published as a proposed rule, the action will be published as a final
rule in the Federal Register.
* * * * *
(4) * * *
(i) * * *
(A) ABC recommendations. The PDT shall develop ABC recommendations
based on the ABC control rule, the fishing mortality rate necessary to
rebuild the stock, guidance from the SSC, and any other available
information. The PDT recommendations shall be reviewed by the SSC.
Guided by terms of reference developed by the Council, the SSC shall
either concur with the ABC recommendations provided by the PDT, or
provide alternative recommendations for each stock of regulated species
or ocean pout and describe the elements of scientific uncertainty used
to develop its recommendations. Should the SSC recommend an ABC that
differs from that originally recommend by the PDT, the PDT shall revise
its ACL recommendations if necessary to be consistent with the ABC
recommendations made by the SSC. In addition to consideration of ABCs,
the SSC may consider other related issues specified in the terms of
reference developed by the Council, including, but not limited to,
OFLs, ACLs, and management uncertainty.
(B) ACL recommendations. The PDT shall develop ACL recommendations
based upon ABCs recommended by the SSC and the pertinent
recommendations of the Transboundary Management Guidance Committee
(TMGC). The ACL recommendations of the PDT shall be specified based
upon total catch for each stock (including both landings and discards),
if that information is available. The PDT shall describe the steps
involved with the calculation of the recommended ACLs and uncertainties
and risks considered when developing these recommendations, including
whether different levels of uncertainties were used for different sub-
components of the fishery and whether ACLs have been exceeded in recent
years. Based upon the ABC recommendations of the SSC and the ACL
recommendations of the PDT, the Council shall adopt ACLs that are equal
to or lower than the ABC recommended by the SSC to account for
management uncertainty in the fishery.
* * * * *
(iii) * * *
(G) GB yellowtail flounder catch by small mesh fisheries--(1) For
the purposes of this paragraph, the term ``small-mesh fisheries'' is
defined as vessels fishing with bottom tending mobile gear with a
codend mesh size of less than 5 in (12.7 cm) in other, non-specified
sub-components of the fishery, including, but not limited to, exempted
fisheries that occur in Federal waters and fisheries harvesting
exempted species specified in Sec. 648.80(b)(3).
(2) Small-mesh fisheries allocation. GB yellowtail flounder catch
by the small-mesh fisheries, as defined in paragraph (a)(4)(iii)(G)(1)
of this section, shall be deducted from the ABC/ACL for GB yellowtail
flounder pursuant to the process to specify ABCs and ACLs, as described
in this paragraph (a)(4). This small mesh fishery shall be allocated 2
percent of the GB yellowtail flounder ABC (U.S. share only) in fishing
year 2013 and each fishing year after, pursuant to the process for
specifying ABCs and ACLs described in this paragraph (a)(4). An ACL
based on this ABC shall be determined using the process described in
paragraph (a)(4)(i) of this section.
(5) * * *
(iv) AMs if the sub-ACL for the Atlantic sea scallop fishery is
exceeded. At the end of the scallop fishing year, NMFS shall evaluate
Atlantic sea scallop fishery catch to determine whether a scallop
fishery sub-ACL has been exceeded. On January 15, or when information
is available to make an accurate projection, NMFS will also determine
whether the overall ACL for each stock allocated to the scallop
[[Page 22449]]
fishery has been exceeded. When evaluating whether the overall ACL has
been exceeded, NMFS will add the maximum carryover available to
sectors, as specified at Sec. 648.87(b)(1)(i)(C), to the estimate of
total catch for the pertinent stock. If catch by scallop vessels
exceeds the pertinent sub-ACL specified in paragraph (a)(4)(iii)(C) of
this section by 50 percent or more, or if scallop catch exceeds the
scallop fishery sub-ACL and the overall ACL for that stock is also
exceeded, then the applicable scallop fishery AM shall take effect, as
specified in Sec. 648.64 of the Atlantic sea scallop regulations.
(v) AM if the small-mesh fisheries GB yellowtail flounder sub-ACL
is exceeded. If NMFS determines that the sub-ACL of GB yellowtail
flounder allocated to the small-mesh fisheries, pursuant to paragraph
(a)(4)(iii)(G) of this section, is exceeded, NMFS shall implement the
AM specified in this paragraph consistent with the Administrative
Procedures Act. The AM requires that small-mesh fisheries vessels, as
defined in paragraph (a)(4)(iii)(G)(1) of this section, use one of the
following approved selective trawl gear in the GB yellowtail flounder
stock area, as defined at Sec. 648.85(b)(6)(v)(H): A haddock separator
trawl, as specified in Sec. 648.85(a)(3)(iii)(A); a Ruhle trawl, as
specified in Sec. 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as
specified in Sec. 648.84(e); or any other gear approved consistent
with the process defined in Sec. 648.85(b)(6). If reliable information
is available, the AM shall be implemented in the fishing year
immediately following the year in which the overage occurred only if
there is sufficient time to do so in a manner consistent with the
Administrative Procedures Act. Otherwise, the AM shall be implemented
in the second fishing year after the fishing year in which the overage
occurred. For example, if NMFS determined after the start of Year 2
that the small-mesh fisheries sub-ACL for GB yellowtail flounder was
exceeded in Year 1, the applicable AM would be implemented at the start
of Year 3. If updated catch information becomes available subsequent to
the implementation of an AM that indicates that an overage of the
small-mesh fisheries sub-ACL did not occur, NMFS shall rescind the AM,
consistent with the Administrative Procedure Act.
* * * * *
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
0
8. The authority citation for part 697 continues to read as follows:
Authority: 16 U.S.C. 5101 et seq.
0
9. In Sec. 697.7, revise paragraphs (c)(1)(xxii) and (c)(2)(xvii) to
read as follows:
Sec. 697.7 Prohibitions.
* * * * *
(c) * * *
(1) * * *
(xxii) Possess, deploy, fish with, haul, harvest lobster from, or
carry aboard a vessel any lobster trap gear, on a fishing trip in the
EEZ from a vessel that fishes for, takes, catches, or harvests lobster
by a method other than lobster traps.
* * * * *
(2) * * *
(xvii) Possess, deploy, fish with, haul, harvest lobster from, or
carry aboard a vessel any lobster trap gear on a fishing trip in the
EEZ on a vessel that fishes for, takes, catches, or harvests lobster by
a method other than lobster traps.
* * * * *
[FR Doc. 2014-09135 Filed 4-21-14; 8:45 am]
BILLING CODE 3510-22-P